Being retaliated against for “Protected Activity”, including retaliation for making complaints
First a quick caution: Most people I talk to who think they have a good “retaliation” lawsuit do not, in my opinion. The law is very technical, and the considerations are numerous. This article is intended to give you some insight into what the legal system looks for in deciding whether you might have some of the basics of a retaliation case. Even if you think your case might qualify as a “retaliation” case, that only begins the inquiry into whether you might have a worthwhile case from a lawyer’s perspective.
The US Supreme Court issued two important employee-friendly retaliation decisions May 27, 2008. Here is my news item about the Gomez and CBOCS decisions.
See also the following articles:
I devote a lot of words to talking about retaliation-related issues throughout this site, in various articles. In a nutshell, your rights probably depend mostly on:
After I discuss those subjects, I have sections on Remedies and Sources for Further Info.
The decision as to whether you have a worthwhile case is different from the basic decision about whether you might have been illegally retaliated against.
Employment lawyers really like retaliation cases. Spend the time it will take for you to review the information and resources below. I have tried to raise awareness of some of the main issues that may arise in retaliation-related cases.
I - Why is the employer retaliating?
Lawyers look first to see whether you enjoy any protection against retaliation. Lawyers look for “protected activity”. This would explain why the employer wants to retaliate, as well as provide the foundation for a retaliation claim. The following list was taken from my wrongful termination article.
Examples of potentially “protected activity” which might give you protection against retaliation. These are things you did, or things you assisted others in doing. This list is not all-inclusive.
- Complained to the employer, or reported to a government agency, about a problem with discrimination, including
sexual harassment and all other categories (race and national origin, age, gender, pregnancy, disability, and religion)
- Complained to the employer, or reported to a government agency, about a problem with safety issues
- Complained to the employer, or reported to a government agency, about a problem with unpaid overtime
- Complained to the employer, or reported to a government agency, about a problem with ERISA benefits
- Complained to the employer, or reported to a government agency, about many other types of law violations, such as labor law violations, some criminal law violations, etc. . .
- Complained to the employer, or reported to a government agency, about many types of ethics violations
- For employees of Hospitals and Ambulatory Surgical Centers, you reported violations of laws or regulations, or made safety complaints, or reported mismanagement or fraud, or reported other employees who are unable to do their duties. See RSMo 197.285 - Anti-retaliation Missouri Law, protecting some health care workers who report a problem of a listed type.
- Used employee benefits
- Needed or used FMLA leave, or complained about a FMLA violation.
- Requested accommodation of a disability
- Exercised a civil right (but be careful - private sector employees have few “civil rights” that the employer must respect when on the job)
- Filed a workers compensation claim - see also my Workers Comp Retaliation article
- Exercised a right given to you under the workers compensation laws.
- Served as a witness at an unemployment hearing
- Served as a witness in a state regulatory investigation, such as for nursing home practices, casinos, etc.
- Were a whistleblower
- Engaged in union-related activity
- (even if non-union shop) Acted in concert with other non-union workers to redress grievances, such as fairness or safety or pay issues
- Refused to violate the law or a code of ethics
- Refused to do something you considered too unsafe. See my safety article for more info.
- Sued the employer under certain laws such as the discrimination laws, whistleblower laws and benefit-related laws.
- ASSOCIATION: Did any of your friends or associates do any of the above, and you got fired because of what they did or said, whether or not you helped them directly?
- GENERALLY - Whenever you engage in conduct that has legal significance in some way, and get retaliated against for doing so, you may have a retaliation claim (it all depends on the circumstances, of course)
As I state in my wrongful termination article, there are other forms of protected activity and the above is not an attempt to list them all. But I hope that the list is inclusive-enough to raise your awareness of what lawyers look for.
Why did I say above that the listed protected activity might give you protection against retaliation?
There are several very important reasons. For each type of possibly protected activity I have listed, the court will apply certain tests (which vary according to the type) to see if your circumstances should be given the status of “protected activity.” Here’s a couple of examples.
If the protected activity is a “complaint” then the court may look at the following factors closely (but there may be different factors for different types of complaints):
- The words you used when making the complaint could be critical. Everything you said, and everything you didn’t say, could be critical. See also my Complaints article.
- The way in which you delivered the complaint could be critical. The court wants to see that you were respectful and courteous, and didn’t disrupt the workplace or act unreasonably.
- The seriousness of the thing complained about could be a big issue in court. If you complained of things that were not significant enough, then the court might conclude that you did not engage in “protected activity.” The actual words you used could be critical to this determination, as well as the underlying facts that caused you to complain.
If the protected activity was a refusal to engage in illegal or unethical conduct, or whistleblowing of some types, then the court may look at the following factor closely:
Where no special whistleblower law applies, the court will determine the importance or significance of the law or ethical code you refused to violate, or that caused you to blow the whistle. Not all laws are treated equally. Some are more important than others. Here’s a few nutshell examples from our Court of Appeals decisions about Missouri “Public Policy Discharge” cases: 1) An employee may be protected against retaliation for reporting to the employer that his superior is committing felony theft. 2) A privately employed pilot may not be protected when he refuses to fly his plane because he feels weather conditions are unsafe, where the employer believes it is safe. (But see my whistleblowers article - an April 2002 case says air carrier related claims like this may be pre-empted by Federal law now). 3) A factory worker may be protected for refusing to falsify product testing results to the government.
If a special whistleblowing law does not apply to your situation, then your case will probably fall under the heading of “Public Policy Discharge.”
For many of the types of “protected activity” I mention in the list above, there are no special statutes that might explicitly give you protection against a retaliatory termination. Usually, that means that you will probably have to rely on the “public policy discharge” theory if you want to take legal action.
Public Policy Discharge means, in a quick nutshell, that it might be a wrongful termination if you get fired for reporting illegal or unethical activities, or if you get fired for refusing to violate the law or a code of ethics. For one example, the CPA or accountant’s code of ethics could be a fertile source of growth for wrongful termination cases under the public policy discharge theory. Each case is unique, and it’s often very difficult to isolate a good solid legal or ethical basis for a public policy discharge claim.
Here’s a link to an article that discusses the Public Policy Discharge theory published in 2003 in the Journal of the Missouri Bar Association: [link is sometimes broken - if broken do a google search for mobar journal 2003 public policy and read from the “cache”] “Wrongful Discharge of At-Will Employees in Missouri” (opens in new window). If you read it carefully you will get a feel for how the “Public Policy Discharge” doctrine works. NOTE: The article mentions “workers comp retaliation” as a form of wrongful discharge in Missouri, which is true, but that’s not a form of public policy discharge. See my own article about Workers Comp Retaliation for more info. Also, I’ve written something here on TimsLaw.com about Employment at-will which you might find interesting. Also, you could see my article on Wrongful Termination.
NOTE: Some laws give whistleblowers special rights akin to a discrimination case if you get retaliated against for the whistleblowing, and the court may scrutinize your case differently from what I have talked about above. For some other examples of laws, see also my whistleblowers article.
II - How is the employer retaliating?
Retaliation does not have to be a firing. It can be a demotion. It can be the denial of a raise or promotion or important benefit of employment. It can be a material and substantial adverse change in your working conditions or terms and conditions of your employment. These are called “Adverse Employment Actions.” If the employer is trying to force you to quit, call a lawyer. See my constructive discharge article if you are being mistreated and are considering quitting your job. See also my articles on Hostile Work Environment and Harassment Generally.
Employers are smart today. They do not come right up to you and say “I don’t like it that you called OSHA (or filed that workers comp claim, etc.) so you’re fired!” Instead, they begin to document you for termination. They watch your time, scrutinize your work, ride you a little harder, pressure you in subtle and not-so-subtle ways, and make it clear to you that you are not wanted. They do not usually come out with a direct and provable lie about you to justify your termination. Instead, they document you, and they wait for you to make a big mistake. They wait for you to dig your own grave . . . How you respond to the pressure can have a big effect on your legal rights.
III - How are you responding to the retaliation?
Sometimes employees dig their own graves. They perceive that the employer does not like them anymore, after the “protected activity” occurred, and they lose the will to do a good job. They might develop attitude with the boss, or stop being punctual, or even do something stupid. The employee then gives the employer a seemingly good reason to fire the employee, before the employer has otherwise committed enough retaliation to give the employee a lawsuit.
It is very possible that you can lose the protection against retaliation by acting unreasonably after engaging in the protected activity.
Lawyers like your case more if you continued to be a good and dedicated employee after engaging in the protected activity. We often call this the “be a good subordinate” rule. It makes it more difficult for the employer to document you for discharge.
If you think you see retaliation occurring, you should consider complaining to the proper person at work, usually Human Resources or some other designated manager. See my complaints article for more information about the complaint process, with tips and traps. Depending on the reason for the retaliation, you might need to consider filing a charge of discrimination with the EEOC or MCHR. Some special whistleblower laws have extremely short deadlines to file complaints with government agencies, such as 90 days or less. You should consider calling a lawyer and talking about your situation if you are not certain what to do. You can also call the most likely Federal Government agency that issued the laws about which you complained, for example, OSHA for safety issues, Department of Labor for many other subjects.
It is generally a bad idea to say “I quit” without getting legal advice first. See my constructive discharge article if you are being mistreated and are considering quitting your job.
See also my articles on Hostile Work Environment and Harassment Generally for some info about being mistreated at work.
IV - The type of retaliation case you have determines the standard of proof. Some kinds of cases have a standard of proof that greatly discourages lawsuits and encourages employers to retaliate.
The type could make a lot of difference. If you were retaliated against for certain kinds of “protected activity” then your standard of proof is lower than for other types of protected activity.
A lower standard for some cases, like those under the traditional discrimination laws
For example, if your race discrimination complaint was a mere “motivating factor” in the retaliation (even just one of several motivating factors), your employer has violated the law. If you can go a little further and prove that the retaliation was a direct result of your discrimination complaint (the major reason even though there might be several reasons offered by the employer), you can win more damages. Thank goodness you don’t have to prove that the complaint was the “exclusive cause” of your termination.
In some types of cases, there is a good chance that the judge will make you prove an “exclusive causal connection” between the protected activity and the retaliation. It’s not enough that you can prove a “direct result”; you must prove “exclusive causality.” (But what of this Earth has an exclusive cause?)
The most common type of case affected by the “exclusive causal connection” doctrine is Workers Comp Retaliation (retaliation for exercising a workers compensation right). There is a good chance that the judge will make you prove an “exclusive causal connection” between the protected activity and the retaliation. Accordingly, most people who think they have a retaliation case under a Workers Comp Retaliation theory can’t find a contingency fee lawyer. The cases lose too often.
I have a separate article about Workers Comp Retaliation which goes into more detail about how the “exclusive causal connection” doctrine affects cases.
Where a special whistleblower retaliation law applies, the standard could be different as well.
Obtaining a remedy for the retaliation
WARNING: If you act without a lawyer, you may screw the pooch — So get a lawyer right now.
If the retaliation stemmed from the making of discrimination complaints, you should probably file an EEOC or MCHR charge of discrimination. See my discrimination article for additional information about the complaint process.
OSHA will take your complaint about retaliation for reporting workplace safety problems. See my workplace safety article for more information. Visit OSHA’s web page regarding discrimination against safety-related whistleblowers.
The US Department of Labor might take a complaint about retaliation arising from complaints you filed under the wage, hour and overtime laws, or FMLA, or for a violation of some of the special Whistleblower laws. Visit the Dept of Labor web site for fairly comprehensive info on the Federal employment laws.
Depending on the law, maybe some other agency will also take your complaint. You have to read the applicable law to determine what your remedies and procedures are.
Each law is different. You often have the ability to go to court, but not always. Depending on the basis of the retaliation, you might have to obtain a right to sue letter from the EEOC or MCHR. See my discrimination article for additional information about the “right to sue” letters. For some types, you have to file with the Federal Department of Labor, and you might not have the right to bring your own lawsuit. Your deadlines differ depending on the type of law violated.
But for many kinds of retaliation, you can just go into court and sue, and you do not need a right to sue from any agency. Don’t wait to investigate your rights. Your deadline may vary depending on the kind of protected conduct you engaged in that caused the retaliation to occur. Some of the laws have very short deadlines. Some of the government agencies won’t help you if you wait.
Your allowable damages will vary depending on the protected activity that caused the retaliation. Sometimes, a law limits your damages to lost pay, with perhaps an equal amount as extra damages. Some laws allow attorney fees and some don’t. Some laws allow the full range of compensatory and punitive damages, but no attorney fees.
Some laws don’t allow any damages at all. Here’s a curious example for your entertainment, for what it’s worth. Missouri makes it illegal to fire someone for the off-duty use of tobacco and alcohol (unless such use interferes with the employment). But the law expressly forbids anyone to bring a legal action over a violation. See RSMo 290.145. The title of that statute is “Discrimination, refusal to hire or discharge employee for alcohol or tobacco use not during working hours, prohibited, exception–not cause for legal actions.”
Further sources of information on this site
I have several other articles that address retaliation-related issues in some way:
Wrongful Termination, Safety, Constructive Discharge, Discrimination, (which links to some good sources of additional information) Complaints, Hostile Work Environment, Harassment Generally, Whistleblowers, Workers Comp Retaliation, Been fired? Start here, Types of employment cases I especially like to see,
By the way - if you got fired or were forced to quit it might be a good idea to get a Missouri Service Letter at the same time as you are exploring your other options. It’s a good tool. Read the article to find out why.
Please see the resources listed above. Click one of the Feedback links throughout this site and tell me whether the information was useful to you in raising your awareness.
Article written by | Tim Willoughby
Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Website (see the directory of lawyers).