Employer Retaliation

What is unlawful retaliation?

There are a lot of forms of retaliation that can occur in the workplace. An employer can retaliate against an employee who jumps the chain of command, who questions authority or who is perceived as a threat. However, most of these are simply not illegal in Tennessee. However, other forms of retaliation are unlawful. Many times, the laws which prohibit retaliation are known as “whistleblower” laws.

An employer cannot fire or take other adverse action against an employee for exercising his or her rights as an employee or reporting illegal activities. These are what are known as “protected activities” and those types of activities are the key to determining whether the retaliation is either unlawful or lawful.

Generally speaking, a protected activity is anything that the law says the employee has a right to do. Examples of this include, reporting for jury duty, reporting unsafe or illegal work conditions, making a claim for worker’s compensation or complaining about unlawful workplace discrimination or harassment. There are many other examples of what can constitute a protected activity, but these are some of the most common.

Once an employee has engaged in protected activity, that employee has a protected status. This status is not the same as saying the employee is 10 feet tall and bullet proof, but the employer is wise to take special precautions with an employee who has engaged in this sort of activity. On the flip side, an employee who has engaged in a protected activity needs to ensure that his or her work and conduct is above reproach.

What does unlawful retaliation look like?

Employer retaliation can take many forms — termination, demotion or pay cut, pay freeze or withholding bonuses, transfer, harassment, promotion denials, suddenly poor employee reviews or defamation after you have left the company.

What are some of these whistleblower laws?

Many reprisal claims are brought under Title VII of the Civil Rights Act. Several federal laws (e.g., the Clean Water Act) and federal and state agencies (OSHA, the EPA) also have anti-retaliation protections for "whistleblowers" who report illicit activity. These claims may have separate reporting or prosecution requirements. They also may have different statutes of limitations.

What happens if the employee quits?

If the employee leaves his or her job because of an employer's retaliation or harassment, you may have to prove a constructive discharge in addition to the other elements of the claim. Typically, constructive discharge cases are very tough to win — the employee must prove that he or she "had no choice" but to quit and that a reasonable person in his or her position would have felt as if he or she had no choice.  

If you have questions about retaliation for protected conduct, contact Becker Law Offices today. Mr. Becker offers a confidential consultation and personally handles your case.