Many employers are aware that they are not supposed to discriminate against employees belonging to certain classes protected by statute. A number of employers have also found themselves defending charges or lawsuits involving allegations of discrimination, or interference with rights under family leave, workplace safety, workers’ benefits or other laws. Some of those charges or lawsuits, may not have had any merit, but still ended up costing the employer large sums of money and blackened its reputation for a long time afterwards. A few employers may even find themselves tempted to respond in a way designed to ensure that the employee filing the charge or lawsuit is sorry s/he ever did so, and to send a message to other employees to think twice before doing anything similar. Quite a few employers have learned the folly of this approach after the fact and after the damage is done. Such behavior is known as workplace retaliation. Retaliation claims are on the rise, and can be even more damaging to an employer than the original underlying allegations. This week, The Emplawyerologist will provide a general definition and overview of retaliation and the types of federal statutes that protect employees against such behavior, which you can catch after the jump…What exactly is workplace retaliation? Workplace retaliation is a negative action by (or at the behest of) an employer against an employee who alleges or reports activities that s/he reasonably believes to be unlawful. Such activities can include harassment or discrimination (and those are the ones we seem to hear about most often) but can also include violations of other laws that either affect employees’ rights or even other illegal acts. The most common retaliatory actions by employers include discharge, demotion, refusal or failure to promote, negative performance evaluation, harassment to name just a few. We will discuss in more detail what type of conduct can be the subject of a retaliation claim in an upcoming post. In general, to make a cognizable claim (or in legalese a “prima facie case”) for retaliation, an employee, generally, must allege (and ultimately prove) the following:
- The employee opposed or participated in a complaint process alleging activity reasonably believed to be unlawful. This is often called “protected activity”AND;
- S/he was subjected to an adverse action, which has been described in general terms above and will receive more detailed treatment in an upcoming post, AND;
- There is a causal connection between the protected activity and the adverse action.
Is retaliation just another type of employee claim to add to a laundry list? Why should you as an employer be any more concerned about a retaliation claim than any other type of claim that an employee can bring against you? First, as I have already pointed out, retaliation claims are on the rise. According to the EEOC, retaliation charges increased by 55% between 2000 and 2009. 36% of all bias charges filed with the EEOC in 2010 were retaliation charges. You get the picture, right? That is just one area of law where employees can allege employer retaliation. There are many other laws that contain retaliation provisions. (Hang on, I will get to that in just a moment.)
Why else should employers be concerned about a retaliation claim? In many ways they are easier to prove than more seemingly “substantive” claims like discrimination, wage and hour law violation or the like. Judgments on retaliation claims can be at least as costly as those recovered on underlying claims, and–, the kicker— the employee does not have to win his or her underlying claim to win the retaliation claim. What??? How can that be? If I reasonably believe that my employer acted in a discriminatory manner toward me or another employee, or I reasonably believe that my employer is doing something else that is unlawful, and I oppose or cooperate in the opposition to such a practice, I am protected—even if it turns out that I am wrong about my employer, and it is found that my employer did not in fact engage in any unlawful practice or behavior. The employee does not need to be right. S/he just needs to be reasonable in his or her belief that the opposed practice is unlawful. Even if it is found that the employer did not commit the underlying acts alleged (leading to a dismissal of the underlying claim), if the employee can prove that the employer still retaliated against him or her for reporting or complaining about the alleged unlawful act, s/he will win the retaliation claim. The employee essentially gets a second chance to recover money damages against an employer that would have completely escaped liability if it had not attempted to get even. In other words, in the land of employment relations, revenge will be anything but sweet!
One more caveat for now: Almost any statute that covers employee rights contain anti-retaliation provisions. On the federal level, such statutes include without limitation:
- Title VII of the Civil Rights Act of 1964;
- The Age Discrimination in Employment Act:
- The Equal Pay Act;
- The Americans with Disabilities Act and the Americans with Disabilities Act Amendments Act;
- GINA;
- The Family Medical Leave Act;
- The Uniform Services Employment and Reemployment Rights Act;
- The Occupational Safety and Health Act;
- The Fair Labor Standards Act;
- The Employee Retirement Income Security Act.
There are also statutes known as “whistleblower” laws that protect employees who come forward to report, complain about oppose or cooperate with investigations about employer activity reasonably believed to be illegal or unethical. Many states have such statutes. The Sarbanes Oxley Act (SOX), which imposes record retention requirements on publicly held companies, also has whistleblower provisions. The Bottom Line is that it is illegal to retaliate against employees who in good faith report or oppose activity believed to be unlawful or unethical. The remedy may seem draconian to many employers. The rationale behind anti-retaliation laws is that the substantive laws have no “teeth” if employees and others will not report violations because they fear retaliation.
We now have an overview of the concept of workplace retaliation. Join The Emplawyerologist next week for a discussion of “who” can file and prevail in a retaliation claim. Until then, Happy Trails!
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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My situation exactly. I worked in a major retail pharmacy chain. When we were consistently understaffed by the pharmacy manager I approached him kindly (that is the truth) and asked if was hiring more individuals. He practically yelled at me, “NO!”. He later hired two individuals with drug and emotional problems. I later discovered he was committing fraud with regard to the Truth in Billing act and medicaid billing fraud as well as posting racist comments on his social media site. He made one of my subordinates file a complaint against me with HR stating I was creating a hostile work environment. I was kicked out of my store and made to float (retaliation number 1) for months. Before floating, my supervisor asked me to send him an email with five sentences describing the law breaking activities in my store. I kept the email. I told him why was I being punished when I have proof the manager was breaking the law and that if he wasn’t going to do anything about it I was going to the attorney general and the board of pharmacy. While floating I was met by my supervisor who had a folder. It had my write up. He wanted me to sign a write up for not writing up the technicians (I had written them up but the pharmacy manager hid the write ups). I was so upset and wasn’t thinking and I signed it. I was later met by him at another store where he and HR claimed that my new store pharmacists were afraid to work with me. I needed to be written up and made to float again (retailiation number 2). I refused to sign. They were screaming, “SIGN IT!!”. My friend taped the conversation but it can’t be used in court. I quit shortly thereafter for fear that I was going to be written up again and again and fired. I have never been written up nor fired. It is too late for the EEOC claim (plus it would be on my background search). Is there someone who will file an anonymous complaint with the state agencies if I give you all the proof? The proof consists of the email, various times, dates and prescriptions that were filled with illegal procedures (misbranding, using two ndcs for a claim, medicaid fraud, insurance fraud, technicians acting like pharmacists, pharmacists leaving the pharmacy unattended, pharmacist’s note asking me to do a transfer after she had written a fake prescription for a patient (I refused but the pharmacy manager complied) etc). Out of work for over six months.
I am so sorry to hear about your situation. Your description does sound like workplace retaliation. I cannot really comment much on it, because I do not know all the facts. What you describe does not sound like something the EEOC would get involved in though. I do not know but would think that the statutes that regulate the pharma industry would have some type of anti-retaliatory provisions. The state in which you were working may also have whistleblower laws. I strongly recommend you consult with an attorney in the state where you were employed to evaluate your options. Thank you for visiting The Emplawyerologist. I wish you the best of luck in all that you seek to do from here forward. I really do hope that you have easier times ahead.
I had a similar experience. I left my company in 2006 and in 2009 I was contacted regarding a class action FLSA suit against my employer which I joined. That lawsuit finalized in 2013 in favor of the employees, and a few months later, the employer filed breach of contract suits against me and many dozens of other ex-employees…. all of whom had been part of the lawsuit. So, 7 years after the fact, my ex-employer is trying to sue me and others for supposed overpayment of commissions. Not considering the expiration of the statute of limitations, he made no attempt to contact me or anyone else in regards to this matter prior to filing suit. Oh, and I just found a newspaper article from 2009 where the employer actually claimed he would counter-sue the employees in response to the FLSA lawsuit. So he made the retaliation threat and then he followed through with the threat by filing lawsuits.
It sounds like the lawsuit should be dismissed relatively quickly, given that it was probably filed after the statute of limitations ran. If so, the other question is whether you can get the court to order your former employer to pay your attorney fees, given that it apparently intended to retaliate against you and your co-defendants and may have knowingly filed an untimely lawsuit. You should of course consult with and retain local counsel. Good luck!
hi there…not sure if this falls under Retaliation or not..and wondering if i have a case against boss who fired me a little over a month ago because i apparently made his wife mad when i tried reorganizing her workload(i managed her). Instead of not getting involved because it was a conflict of interest…he began to slowly retaliate against me for the next several months…demoting me, taking certain tasks away from me, etc…so i just stayed quiet and kept hoping it would get better. Well, it didnt and i was blind-sided not by my boss, but by someone in another position in the company serving me my severance and forced resignation…stating a reason of “difference in personalities”. No warning, whatsoever. There was no Policy break or Wrongful termination per say since Oregon is an at-will state….so not sure what to do(?)
So sorry I missed this comment. Apparently it was sent to the spam folder. In general, in an employment-at-will state a boss can fire an employee for the type of reason you have described, unless the employee can show that that reason was a pretext and that the real reason was discriminatory within the meaning of relevant state or federal statutes. That said, I am not admitted in Oregon, and if you want to be sure one way or another if you have a claim, you would need to consult with local counsel. Best of luck!
I was a teaching assistant on my way to my very first career opportunity in 2008 when I witnessed the teacher that I was assisting lose control and yank a then 10 year old special needs boy out of the line during dismissal in Feb 2008 and she slammed this poor boy on the swimming pool metal doors and she continued poking him and shoving him as the class and myself witnessed her. Later that evening I just could not sleep just thinking about that poor child and I began to read the mandated reporter manual that I had to read before getting hired and when I read that I could go to jail if that child told his parents and I did not report, and so I filed a report anonymously at first and then I filed another one and out of fear of retaliation and getting beat up by this violent teacher I said I was that boys sister, I did not use a name because I did not know his sister or family but just said I am his sister. Two weeks later all hell broke lose in the school and I was sent on reassignment which later turned out to be an investigation but not of the teacher, but I was investigated as the teacher and administration made up allegations against me that sure enough got me fired just 6 months later. I immediately applied for unemployment insurance which was denied because I was fired with an employee misconduct which I appealed and won the appeal where the judge did believe me when I said the teacher hit the boy. I later retained a crappy attorney and filed a lawsuit which was dismissed without prejudiced in March 2011. The most annoying part of this whole thing is that I was a victim of domestic violence for many years, and in the year 2000 I just could not take the beatings anymore, had the man arrested, and at the age of 43 years old, I decided to become an independent and educated woman for myself and my children. I went back to school and got my high school diploma and in the year 2002 and at the age of 45 years old, I became the very first woman in our family and generation to get into college. I got an Associate’s degree in Psychology at the age of 47, and continued on to major in early childhood education in which I also completed 60 college credits and only to get my first job and get fired. Not only did they fire me but I am also on their ineligible list with an employee misconduct hanging over my name and social security number and I have been on well over a thousand interviews since I was fired and when it comes to finger printing and background checks, I get denied employment because an employee misconduct is so broad and can mean anything. So, since the year 2008, I have had my electricity shut off several times, have had to go on welfare, been to several charities to prevent an eviction and am so depressed that I have not even been able to enjoy my grandchildren or my life in general. I have been set back 40 years where I was so vulnerable and weak and thought nothing of myself. I could not afford an appeal and just about two months ago had an opportunity to begin work again until they requested my fingerprints from the NYC Department of Education and was told that I was fired for employee misconduct and so I am just a nobody today where nobody cares and I can’t get any kind of help, I have been told about these statute of limitations which pretty much means I am screwed for life.
Hi Elba,
Thank you for your comment. I replied to you privately, because of your specific circumstances. I am so sorry to hear about what you have been going through. Please drop me a line to let me know how things turn out. Again, I emailed you privately, so you can use that address to respond.
Thanks so much for your concerns and yest I got your message, I did respond to your messages and am waiting for your response back. I can’t just sit and do nothing. For all these years I have written to congress, UDOL, and many other agencies and nothing, but I will die fighting for justice…
Thank you for the information I am now in a process where I was wrongfully terminated 2 days ago. The employer wanted private information from me about others and if I was interested in working for the opposing company. Once they found out I was suspended wrongfully as it did not follow the company’s police and then next day terminated after being question yet again about the opposing company. This was after the company that fired me posted an email stating they would hold no retaliatory acts or threaten any of the employees interested in leaving as long as it was done on our own time.
Hi Justin,
Sorry for my delay responding. It sounds like you may want to consult with local counsel. There may be laws specific to the state in which you were employed that may come into play here.
I worked for a city at night as a custodian. My weekend supervisor sexually harassed me from the day I started, and then he became really mean when I told him to stop talking like that to me. Not wanting to get fired, it took me a few months to tell my regular supervisor. I filed a formal complaint and a month later I was fired, reason being our state is “at will” and my services were no longer needed. I don’t know what kind of reference they’re giving potential employers, but I haven’t been able to get a job since. I filed an EEOC claim about a week ago with lots of documentation, letters, recordings, and witnesses. Now starts the waiting game.
I’ve been told since my employer was a city, this is a federal case and will include the Dept of Justice and the Dept of Labor investigating the claims. What are their roles? If I’m given a right to sue notice and take it to federal court, what are damages likely to be? How are they calculated? Are punitive damages considered by judges? Going to federal court is a big step; EEOC, DOJ, & DOL will have done all the legwork and will give me a copy of the entire investigation and their decisions. Will that be enough for federal court or should injure a lawyer to present my case for me?
I am sorry you have had such a negative experience with your employer. I would highly recommend that if you get a right to sue notice that you speak with local employment counsel, with whom you can have a full consultation and show whatever documents you have, and who will give you an idea of how strong s/he thinks your case is. Good Luck!
I filed a racial discrimination claim against my boss and her supervisor in January 2015. 70 days later, I was fired in April 2015 because I didn’t attend a meeting with one of the company partners. However, my boss told me not to attend that meeting and attend hers which was scheduled at the same time as the partner meeting. I had perfect work performance and no disciplinary action.
Hi Janet,
Sorry to hear you are going through all that. If you have filed a charge or a lawsuit you can update the allegations to include a retaliation claim. I wish you the best of luck.
I would like to hire you as contingency fees because I am on retire money now. or you can help any of your friend to represent me to avoid the City may file to dismiss in alleging without plausible pleads that the employers or defendants used to file dismissing the Plaintiff case because filing lawsuit by pro se.
I am not admitted to the Federal District Courts in Texas or the State Courts of Texas where you would need to file suit. I really do urge you to find someone in Texas. Many employees’ attorneys take cases on a contingency basis. I wish you the best of luck.
I feel like I was part of retaliation from my supervisors because they blame me for having one of their friends fired for making racial, derogatory comments to me. Once she was fired, my supervisors began to nit pick at every little mistake that I made, which they never did before this lady got fired. I was told I would recieve an increase but then continuously given the run around and/or ignored and finally told the company had no money but other employees were receiving increases. My supervisor went thru my work emails snooping ti find out anything she could use against me and she did. I was terminated immediately for willful misconduct, told that I wouldn’t receive my pto payout nor would I be eligible for unemployment benefits even though another woman was terminated for excessive tardiness but was told she would be eligible for unemployment benefits. I have 5 pages of dates of events, witnesses, etc to collaborate my claim. What are your thoughts?
Thank you for your comment, Monique. Assuming that not too much time has passed since these events, you may have a viable retaliation claim against your former employer — especially if you have proof of what you said in your comment and your employer cannot prove that it had a non-retaliatory motive for terminating you. Please note that the US Supreme Court has ruled that retaliation claims of this type, you would need to prove that but for the retaliatory motive you would not have been terminated. That means that if your employer can prove that it would have terminated you for another reason, it will not be liable for retaliation. I would suggest you speak with an employment attorney near you. There might be laws in your State that would also afford you some recourse. Good luck!
It was recently found that my supervisor was creating a hostile work environment and subjecting us to retaliation. I had been demoted about one month prior to the beginning of the investigation. I feel my demotion was retaliatory and had no base. I’m wondering if my HR dept should be looking at overturning my demotion. I will certainly bring it up to them very soon if I hear nothing.
Hi Lisa, If the demotion happened fairly recently speaking with your HR Department may be a good idea. At the very least, you can at least get either a sense of what they thought the basis was for your demotion or even investigate the demotion itself. If you do not get the demotion overturned–or at least an investigation into your demotion– you can always consult with local employment counsel to see if you may have a viable claim. Good luck!
hi I work for a major car manufacturer in TN and was up for a promotion and got accepted for it the paperwork was submitted and processed in the company system. I was 2 weeks away from my orientation for the promotion in which my pay raise would start that day. Two weeks prior to that orientation I got a final written for having my forks on my forklift too high (did not cause an accident or any harm to anyone or anything, I never touched anyone or anything only driving with my forks too high, therefore breaking a safety rule unintentionally) when I have never been in trouble for anything in 2 yrs of working there. therefore disqualifying me at the last minute for the promotion/raise even though all my paperwork was already in motion. (was actually kicked out of my contractor employers system and put in to the manufacturers system as one of their employees, to prove I was kicked out of the contractors system I did not exist in either system for about 3 weeks I had to go in and request a manually written check the day after we all were supposed to get paid each week. and the 3rd week of asking for a check I go to deposit the check and it goes through and 3 days later I have overdraft fees on my acct. I get to looking and call my bank and they said the check I deposited bounced ) I believe I was retaliated against because two weeks prior to that the managers favorite hit a guardrail and ripped it out of the ground and was NOT drug tested or written up (when an accident happens a drug test is mandatory in the company) but the manager covered it up. and because I was one of them that spoke up about the accident and how it was wrong and had also spoke up about some other favoritism going on between this manager and employee before the accident to HR, it put him on a mission to retaliate some how. Now recently they have promoted that employee to a lead role giving him a $1 raise for a position I was going for as well which I am disqualified for now.
I have already tried to settle it civil with HR but they are taking the managers side and flat out called me “a liar and that I should be fired but they were doing me a favor because I have been an excellent employee.”
so what I am wanting to know is do I have a case and or where do I go from here? who should I talk to?
thank you.
Hi Dustin,
I am sorry to hear about your I recommend you speak with local counsel and discuss any applicable federal and state laws that might provide whistleblower protection. A face to face consultation with local counsel should provide you better guidance than I can through this forum. Good luck!
I was a Detective assigned to the property room at the police department.
In the property room was $6000 worth of equipment that had been seized while it was being used to grow marijuana. The case had been concluded in it’s entirety.
One supervisor told me to return the equipment as he had made ‘arrangements’ for it’s return. I refused to do as he ordered because it was seized as drug paraphernalia and Federal and State law says it’s an offense to ‘deliver’ drug paraphernalia. At no time during my two years in property had I ever been ordered to return drug paraphernalia or any other contraband.
My immediate supervisor told me to get rid of it. I wrote a District Court destruction order, had it approved by the departments in-house attorney and signed by a District Court judge. I then had the drug paraphernalia destroyed.
The supervisor who told me to return it made a formal complaint of insubordination and I was interviewed by internal affairs. The interview was conducted by the supervisor who had made the complaint against me as he was also in charge of internal affairs.
I was demoted and suspended for two weeks without pay. A few weeks later I resigned as the first supervisor had been promoted and he would now be my immediate supervisor. I could see that it would not end well for me.
Later I had an interview with the Department of Public Safety who are responsible for licensing Law Enforcement Officers. The board for the interview was composed of former police chiefs, and a representative of the Attorney Generals Office. They exonerated me of any wrongdoing and confirmed that the first supervisor had given me an unlawful order.
When the police chief was given a copy of their findings he wrote to them insulting them and saying that if it wasn’t for his benevolence that I would be facing a charge of criminal damage.
I had filed a tort claim but it had been rejected by the insurers, so I now intend to file in court. Unfortunately tort claims filed in state Court have a financial cap.
Do I have any redress in Federal Court under US 1983 or the 1st. and 14th. amendment?
Hi Neil,
I recommend you consult with legal counsel who should be familiar with both state and federal laws that might contain anti-retaliation provisions that would protect you. If so, you might have better recourse pursuing that avenue than a Section 1983 or Constitutional claim. Good luck!
I was fired after 17 1/2 years working there because I was verbally promised retirement from owner in which the entire staff knew about after 3yrs and the death of owner I was never given any retirement.. One day I was telling someone about Wht was happening and thy told me to call EEOC.. My reply was I mite just do Tht.. The manger just so happen to be standing 3 feet away behind a wall I overheard our conversation.. 2 hours later I was fired.. Whn ask y I was told to learn how to cone to work do my job go home and shut my mouth.. Never been written up or anything the entire 17 1/2 years
I am sorry to hear that. If you have not consulted with local employment counsel you might want to do so in order to evaluate your options under federal and state laws.
I work for the city and I shared some information about my past emotional breakdown with my then coworker. She became my supervisor in October. By November my boss, the GM and another supervisor over 2 plants started calling me names, (psycho, f#%*ing nuts, and referring to my straitjacket). By December they started limiting my work. One Friday my boss came into my office and asked if I was going to have OT on my check. I would have had 2 hours. She said I had to leave early.
I do payroll so on Monday while entering payroll I realized I was the only employee who had been sent home.
I went to the GM and told her I wanted to file a grievance for being singled out and not allowed overtime. She looked me in my face and said she didn’t give a damn if I filed a grievance that civil service was a joke anyway, and that I was “crazy and needed to see a psychiatrist.”
She is in a relationship with our city/county attorney which I believe is a conflict of interest.
I tore the grievance up and went to my office and cried. She came in my office the next day while I was still crying and made me call a psychiatrist.
I called the psychiatrist I saw over 12 years ago. He asked me why I called after so long. I told him my GM forced me to because I was going to file a grievance. He told me to stop listening to ignorant people that did not have a medical degree and that I was not crazy that I had been wounded and wounds take time to heal.
When I came back they questioned me about what he diagnosed me with. What kind of medicine he gave me.
I ended up falling a charge with the EEOC due to being treated this way.
Since the charge, they have been bullying, harassing, and making my life a living hell.
My boss told me she no longer trusts me. The GM told me she hoped I knew that filing a charge was bad for workplace morale. They started locking everything so I can’t work late.
They are enforcing rules that I have to take a lunch. I have never had to before.
The chairman of the board defriended me on Facebook.
I have started having panic attacks when I have to go to work now. The information I shared with my coworker was that I was suicidal 12-14 years ago when my brother died suddenly, the day after he died I found out dad had cancer, 1 month later I found out mom had cancer, my marriage was falling apart. It was too much emotionally for me to bear.
I feel like they are intentionally trying to break me now. I begged them to allow me to make up time because I was so anxious about working last week I was only able to work 2 days.
I requested FMLA intermittent leave and ADA accommodations in April due to all of this.
They will not accommodate me at all so I can get my 40 hours in. I have (bipolar disorder, depression, anxiety, and have been suicidal again lately).
I just wanted to be treated like I was before everyone knew I had disabilities. But that’s not going to happen.
Another employee filed a charge because after returning to work from a workers compensation injury he was told by his boss to go work on a different crew he had enough cripples on his crew already.
It’s sad that they would treat people this way. But it happens and it will continue unless EEOC does something to stop the treatment.
I wanted to add in addition to discrimination against mental/medical issues. I found criminal background checks in the African American Files as well.
When I showed the GM. She told me to shred them.
If you have not spoken with a local employment attorney you might want to do so to get a good idea of your options, especially if the EEOC decides not to pursue your charge.
When filing a lawsuit against the the City of Houston, I want to put the EEOC as the second
defendant, too because EEOC just fight against discrimination if the the investigator and the complainer are the same race or national origin and filed charge against the companies not against the City or state or federal employers. I am Cambodian why the EEOC want to have the City treated me without discrimination to put the Cities pay my damages from the lawsuit? Can you respond I put the EEOC as the another Defendant in this lawsuit?
Without knowing more specifics it is hard to answer this type of question in this type of forum. For example, I do not know if the EEOC issued you Right to Sue Letter or what specifically it did with your charge. The question would be whether you have facts that state a viable claim against the EEOC. Your best course of action would be to consult with employment counsel near you.
I am so sorry you have been having so much trouble at your job. You may want to contact the EEOC to update your charge to include retaliation. If you feel that your employer is discriminating against other employees as well (and it sounds like they may well be) you may want to see if you can also update the charge to include allegations of system discrimination. The EEOC is more like to act on a charge that alleges systemic discrimination. I wish you the best of luck.
I filed another charge on May 31st. For retaliation. I haven’t heard anything back from the EEOC on that one.
I tracked the status of my first charge and found out it was in mediation. However, I now see it has moved to investigation stage.
I’m not sure what that means. I haven’t heard a peep from EEOC. No one has contacted me.
Should I contact them? Does that mean the employer wasn’t interested in mediation?
Does the investigator contact me for more information because I have documented everything? Or do they only contact the employer?
OK, it would be a bit soon to hear back on the later charge. Regarding the first charge, the EEOC should be getting in touch with your employer, asking for documents, statements, etc. There may not be a reason to speak with you right now, because your allegations and your evidence might be sufficiently clear to them. Regarding the mediation, your employer probably wasn’t interested. You can contact the EEOC if you want to and see if you can reach someone that can tell you more about the status of the investigation. Hope this helps.
I work in the construction field, I am a supervisor. I had a employee refusing to work and I notified my higher ups and even had pics of this guy sleeping on the job. This employee found out I was trying to get him released which I approached him and told him I was doing that and had no problem telling him that. Anyways he made allegations against me which the company investigated and found all to be false. So we signed a agreement to drop it and move on. Well about a month later I was called in for a DOT drug test and when I got there I have them a sample then they asked if they could do a visual which I agreed to buy only for a dr which they would not give me a dr so I left. Once I left that’s considered a fail so I was terminated. The said it was a DOT test but when I went to court to get my unemployment on the documents they turned in they stated I was tested cause of the allegations made against me. My question is “can a company test you on allegations roughly a month later after you sign documents to drop the allegations?” I can’t see how that’s legal, how can you test me on allegations that the employer and I agreed on paper to drop. Thanks
Hi John, thanks for writing in. I am sorry to hear that you are going through this trouble. While an employer does have a right to terminate an employee for refusing a request to take a drug test, the specifics of your question make it less than straightforward. Without seeing what you and the employee signed, I cannot really comment on it, and I also do not know if there may be laws specific to the state in which you work that may apply here. If the agreement was strictly between you and the employee and in no way indicated it was binding on the employer, then there would be nothing stopping the employer from looking into the allegations in question. Again, it’s hard for me to say without knowing more. You might want to find a local employment attorney to consult with on the specifics. Good luck!
My daughter works in retail. Last month a co-worker verbally assaulted her in front of the Asst Mgr. She asked the Asst Mgr to intervene but she said “that is just the way she is”. Then my daughter learned that this same co-worker has had altercations with other employees who now refuse to work with her so this co-worker only works with the Asst Mgr and Manager. Recently, my daughter worked with this person again. Over the course of the day, she was verbally assaulted in the morning in front of the Mgr and when she asked for help the Mgr replied that everyone needs to work together. My daughter spoke to the Mgr afterward about this and the Mgr replied that she did not like conflict and that everyone has difficulty with this particular co-worker. My daughter told her that she did not like conflict either but that by allowing this behavior she gives tacit approval that it is okay. And, that something more will happen later that day. The Mgr told my daughter to stand up for herself. Well, something did happen. This woman physically pushed my daughter (with her shoulder) and verbally assaulted her again. My daughter went straight to the Mgr who then spoke to the other co-worker who denied it all. This co-worker then filed a complaint with HR and my daughter had to write out her summary of the events. My daughter cited specific dates, times, and names in her response. The Mgr told my daughter that his could lead to termination but that she would received a glowing reference from her. She then took her name badge and suspended her (sent her home). My daughter called the company hotline over the weekend and filed her own complaint. Now, three days later my daughter has been fired for being at-will (still within the 90 day probationary period) and for not being a good fit. She called HR this morning and was informed that this matter was handled by the store mgmt and the district mgr. I think my daughter was wrongfully terminated due to retaliation. What do you think? In her response to the co-workers complaint, my daughter cited the Asst Mgr’s and Manager’s presence but failure to take action. I don’t believe there was ever an investigation as to what has been going on in the store. If there was, HR would have been involved and employees would have been able to share there concerns about this co-workers and their altercations with her.
Hi, thank you for sharing your story with us. Whether your daughter has a retaliation claim dpends on whether the employer’s actions are in retaliation for reporting, complaining about or objecting to something that is illegal or a violation of professional or industry ethics or the like. I cannot really evaluate a situation based solely on a comment here, but your daughter might want to consult with an attorney near her, who will have more complete information and who will know if there are any state or local laws that may apply, can give her a better idea if she has any legal recourse. Good luck to your daughter.
I think this is my situation. I was placed on administrative leave in relations to false allegations made against me that took place over a month ago. I feel that my employer delayed the commence of the so called misconduct allegations and is now trying to use it against me because of a potential injury claim that I sustained two days prior to the investigation proceeding. I am currently on leave pending investigation. I also feel that this is some sort of discriminating action to protect the employee who caused my injury because no action was taken against him for causing my injuries.
Maurice, thank you for your comment. It sounds like you are saying you sustained a work-related injury. If that injury is relatively recent, you may have a viable claim that your employer’s actions are retaliation if you filed a workers’ compensation claim. I recommend you speak with an employment attorney near you to explore that further and see if s/he feels you have a viable claim.
I have had multiple issues since i started my job May 2, 2016. I just want to know when enough is enough. It’s too the point that sometimes I’m scared to walk into work because the threats that have been made by co-workers. I have gone to HR, managers, and Senior management as well. I’m the only one that ever gets punished when I do. They even suspended me for 3 days over a breakup between my ex boyfriend and i when he showed them the text messages between us the day we broke up, added with something he told them i said but they wouldn’t tell me what it was. Suspended me for gossip and put me on 30 days probation. Before that this girl threatened to beat my a** and called me a stupid white b****, they move me to another department told me they would take care of it because “this company wasn’t ran like that”, but they have that chick a promotion instead. Before all this i had overheard the main boss telling someone that i did awesome wherever they put me and i was about to get a promotion. Instead, all i got was a lateral move, a suspension, no raise or promotion, and a very hostile work place. I’m always stressed out and tense and sometimes scared to go to work, it’s like they are trying to force me to quit, but i can’t afford to quit or I’ll be homeless and starving. I’m already having to rent a co-workers couch and living room just to have a roof over my head. Please help i don’t know what to do. It’s like if you aren’t threatening physical violence or making someone scared at this place you will never move up. Like i said these examples are but a couple to the many things they have put me through there is more. What do i do?
Hi Helen, I am so sorry to hear you are having so much trouble at your job. It sounds like there is so much going on. I recommend you consult with an employment attorney near you sooner rather than later. In this type of situation, it really is not appropriate to give advice through this type of forum. I would not want to do anyone a disservice in that regard. Many attorneys will not charge for the initial consultation. Please don’t wait. I wish you the best of luck.
There is a particular boss that has harassed me for over 2 years. I have filed with the in house EEO(in which they stated there wasn’t enough of information to corroborate the claim, despite the witness statement), workplace violence, and spoken with upper management. Nothing was done. I have a reasonable accommodation due to my disability in which has been ignored since filed which caused an additional injury. I filed a EEOC charge regarding the companies lack of response and acknowlegement of both the workplace violence case and EEO in house in which they took 1/2yr to respond as well as other topics of discrimination due to comments made by management. After the EEOC charge was filed the company sent out a letter reveiling all the details of my case and asking all other employees to collect and send any information they have concerning the case to upper management. Is this legal, is this considered retaliation as it has now created an uncomfortable and hostile workplace amongst direct supervisors, co-workers and myself?
Hi, I can’t say for sure, based solely on what is said here whether it is an actual good faith attempt to investigate your case or whether it may be retaliation. If you are concerned you have been retaliated against– and you may have been– you should definitely speak with local counsel. I would do that sooner rather than later, because it sounds like a lot of time has elapsed and if the statute of limitations has not run yet, it may run soon. Many attorneys will provide a complementary consultation. Good luck!
Can workers get retaliated against. If they report serious violations and their employer has a member on the OSHA Whistleblower Protection Advisory Committee for MANAGEMENT?
I suspect what you are really asking me is whether retaliation in such a case is illegal. OSHA did implement anti-retaliation rules/regulations that were set to take effect December 1. There may also be anti-retaliation laws in the state where you work that might protect workers who report violations. Hope that helps.
I started a job Sept 6th with the promise of someone from corporate being there week one to train. Also promised an assistant since I was supposed to run 3 separate properties out of 2 separate offices. Obviously I can’t be in 2 places at once.
No one trained me at all. I was thrown into a place by myself to figure out the mess that was left behind from a manager that never came to work.
I ran like a chicken with my head cut off. Working 10-12 hour days without taking a lunch trying to put a dent in the amount of backlogged work and keep track of the day to day at all 3 properties. I was only allowed to put 8 hours on my timesheet. So I didn’t get paid all those hours I actually worked.
I finally was sent with a group for 2 days of training Oct 25-27.
Still no assistant.
I came back with goals the training person set for me but no tools or help to really accomplish much.
They hired an assistant finally on Nov 9th. She worked one day and called in the 4.
I was so frustrated because I was getting nowhere and my PTSD and bipolar disorder had reared its ugly head.
Not only from the chaos of the workload but the location of the properties. It was in a bad neighborhood and even the tenants would tell me I had no business there after dark.
I tried to speak to my manager about struggling. She laughed at me and said, “it’s obvious you can’t multitask”
I was asking for help not to be laughed at.
I then contacted the training guy hoping to explain to him my dilemma and getting some sort of dialogue going about what I would need to get ahead in this already far behind work load
He promised to have his boss contact me. She did not.
They offered no help whatsoever. Even though I had asked numerous times for them to send a couple of managers to my property to help me catch up. Nothing
Next thing I know my manager comes with another one and fires me because I took a couple of days off after working 10-20 hours over every week for free, asking for an accommodation, I received the boot.
And to make matters worse they shorted my final check 20 regular hours.
She let me go 2 days before my 90 days was up.
What can I do? If anything?
I will try my best to make this as short as possible. My place of employment Wilco/Hess truck stop which was bought out and is now called Pilot. My boss called me this morning…. She begins with asking me if I am happy with my job? In my confusion as to the question I replied ‘yes, why? She then brings up a social media post of mine that she has read already on facebook this morning pertaining to my feelings concerning the employee meetings held with the new employer and what was said about concerns in hourly pay for those employed by Wilco/Hess and how that I was having to train a new hire already making the pay rate promised. How she came across knowing about the post and reading it, i kinda do but im not positively sure? So that you know, I still do my job and the things I’m required to do and then some, I always have. Anyhow, she proceeds to say with a really bad attitude towards me from the get go and I quote ‘well you need to watch what you say on social media or your going to be/get fired!!! and Mark which is her boss is furious about it and at me. Then really short with me says I have to go my other line is ringing and then just hangs up. She made me feel like she was harrasing me and didn’t want to hear anything about what I had or wanted to say. So with this my question is, can she legally do that? Meaning, being able to call me at home and confronting me the way she done/has and can she/they fire me for something like this? Please, If there is any advise that you could give to me about my situation it would be greatly appreciated. Hope you have a wonderful evening. Thank you so much for your time.
Hi, thanks for writing in. What your boss did may amount to a violation of the National Labor Relations Act, if your post was either part of a discussion or an attempt to start a discussion with others about work conditions. I cannot say for sure that it is illegal or a violation of the NLRA based on the little bit you have mentioned in your comment, and I cannot give legal advice based just on your comment either. I recommend you consult with an employment attorney near you so you can review with him/her all relevant facts and determine what if any options you may have. Good luck!
My employer is trying to get me to drop my nlrb charge against them by offering me a lessor write up. To my knowledge the nlrb be does not know about this private meeting. Is this legal
Hi Dawn,
My first reaction is “probably not”. It sounds like it’s a veiled retaliation/threat, because your employer is also implying that you will get a worse write-up if you pursue the charge, which is legally protected activity. If you have not consulted with an employment attorney near you, I recommend that you do so. You would then be able to discuss all relevant facts and get proper advice. Good Luck!
Thank you, your site helped me. I am in a ugly situation. As a manager last nov. I reported to employers that the needed to look into employment law, because they were clearly violating laws. ( deduction, Tim shortages walkouts mistakes, no breaks not providing sick time or pay. No Saftey committee. And more. ) in dec. it was again apparent no investigation . Because I was made to pay 1/2 of walk out. Next day show employer oregon deduction laws. Things now were different . 2 weeks after I showed law I was give written violation for not letting other employee( employer) that I transferred table that walked out. Which was his way cover up what I reported. If I failed to sign at will for termination is what I was told. Also written notice for till shortage that employer took from paycheck without written permission. While managers on vacation many issue arose which were caused by employer mother and me suspending an employee which was what I believe unlawful
When I reported complaint and concer I was order to stay home. I did give written notice of disabling to employee. Which when employers go home received a employment verification from DHS office for employee I sent home employers said she quit. I did send message letting the know I gave her writte notice. I recieved a demostion, saying they didn’t leave me in charge. Also co worker came and showed message employer sent which said I was suspended for a week for fighting. Which was no true or was I made aware. I resigned for unlawful employment practice. And to now I have been denied unemployment for not proving unlawful employment practice. Yet I gave exhibit of osha and citations given. As well as signed complaint for fron bureau of labor yet had not turned in. As well as notices complaints. And request which didn’t happen of investigation . I am asking for review.
Not sure if this went to spam. Sorry I just saw this comment. I am sorry for what you have been going through. If you have not done so, your best best is to speak with local employment counsel. It really is not appropriate for me to give legal advice on this forum, especially as I am not admitted in Oregon. I do wish you the best of luck, however.
I was terminated in Dec by a family member. She terminated me after making comments about my mental health and stating it was obvious I couldn’t multitask. I asked her for an accommodation which she promptly laughed in my face. I then contacted corporate asking for an accommodation to which I was verbally reprimanded for contacting someone above her. I explained that I had in fact spoke to her but she laughed at me and had no dialog about what I may need.
Within a few days she fired me after a personal family conflict that had nothing to do my job just because she was angry.
Is there anything that can be done at this point? She ended up getting fired by corporate because she could not do the job as expected. I have been applying for jobs since December with no success. Is there any recommendations that you could offer. I don’t know what the statute of limitations are for a refusal to offer an accommodation to a disabled individual is?
I would suggest that you speak with an employment attorney near you. You may have a disability discrimination case. I cannot say for sure one way or another based on the information you provided, and I would not be comfortable giving legal advice through this forum. The state in which you work may also provide you some protections in addition to those under the ADA/ADAAA. Also if the employer is a federal contractor you may have additional protections under the Rehabilitation Act. Please speak with counsel near you. Many attorneys will provide complementary consultations. Good luck!
I have a situation that sounds similar to what has been described here, but I am not certain that it falls under the heading of ‘reataliation’, or not….
I work for the city of Virginia Beach, Virginia as a park aid, a job for which I have years of previous experience with the city of Norfolk. My job entails, monitoring park participant’s activities, maintain a clean and sanitary park for these participants, opening and closing these parks, and constantly doing what are called ‘trash runs’, which means riding around the location on an atv cart to check numerous trash recepticals, and emptying them. After emptying these recepticals, I am charged to replace the bags within.
Recently, actually July 19, 2017, I came into work, and was preparing to do my first trash run, and found that the cart has a flat tire in the back, so I called it in, and was told to just park it, and someone would come out to take care of it. I did so, and was later informed that the tire looked as though it may have been the result of someone hitting something HARD, with the back wheel. I knew this was not me, because I calleed it in as soon as I got to work. That call turned out to be a MAJOR mistake because Mike Moore, my supervisor’s boss, had not had the cart submitted for the required Periodic Maintenance Review (PM) as he was paid to do, and the cart was taken to the garage facility for a PM, at which point the city mechanics noticed some damage to the cart that had not been previously reported, and notified Rick Rowe, whio is Mike Moore’s boss.
Immediately, I was informed that I would not be going to this location to close anymore, and my keys were taken from me. Also, I was no longer allowed to operate the city carts, despite the fact that they were not kept in any safe environment, nor had any process to check them out. The cart in question, as well as most of the carts, were just parked at night, and left there with the keys either in the ingnition, or haging in the office, so ANYONE could have been responsible for the cart damage, but they had decided that it must have been me, and started an investigation into the matter, which ended with me being found culpable, and being suspended for 2 days, and having a reprimand placed into my employee file.
I filed what is called a Grievance (appeal) of the decisions, but that was a wasted effort because allof these people knew each other well, and had been working together for years, and they all found the decisions made by the other as ‘warranted’. Okay so, an appeal was a waste of time and effort, and I received a requested transfer from that work location elsewhere. I was hopeful that this transfer would remove some of the unfair restrictions put on me at work, but that turned out to be wishful thinking as well because these people are all old buddies who consistently scratch each other’s backs at work. Kind of like if you were convicted of a crime in court that you were innocent of,a nd at your appeal found that the Judge was the lead Prosecutor that originally framed you knowingly, and the jury was made up of the prosecution team with Police officers who had already presented varying false statements to initially convict you. You CANNOT WIN that. So, after they inevitably supported each other’s decisions, and I gave up on the ‘Grievance Process’, and just decided to take the punishments, then move forward to put this behind me.
At my new workplace, I was hopeful to build back up my name, which had been ruthlessly besmirched by this scenario, but this was not to be as Rick Rowe seems to been affronted by the fact that I questioned the charges against me, and so had in formed my new Supervisor, and nearly everyone else in our division, that I was reckless with city equipment, and caused, as he worded it, ‘significant damage’ to the cart because of my own carelessness.
I feel unfairly persecuted by this whole matter, and despite the fact that there was never any true evidence to point to my involvement, Iwas informed time and time again that I was guilty of damaging this vehicle. I almost wish I had been carrying a recorder when I talked to my employers aboutthis matter because they lie SO much that I am not certain they even know what the truth is. As such, there was never realy any opportunities to express my side of the story, nor to ask any real questions about the cart without being threated with being sent home without pay. Basically, the whole thing was ludicrous from the beginning, and everyone that I was allowed to talk to about this said they could not see how they would know who did the cart damage, but they managed to find a way, and I personally believe that the way they found was to push the blame onto whoever was a relatively new employee in order to not have to investigate long-standing employees. In other words, if you are not in the club, you have no rights whatsoever, and we can do as we like, so just eat it. Now I find that Rick Rowe was very perturbed by me grieving the accusations, and has gone and spread hurtful rumors throughout the division as pay back.
It is near impossible to do park-wide trash runs without the carts, which apparently I am no longer trustworthy to operate. On top of this, it seems that everyone knows this, courtesy of Rowe, so I am not allowed to drive the carts anywhere now. Is that retaliation??
Hi, your comment is quite long and this really is not a forum for detailed consultations. I would recommend you speak with an attorney in Virginia (as there may also be state laws that apply to your situation and I am not admitted in VA). Many attorneys will provide free initial consultations. Good luck!