Were you fired from your job because you complained about illegal conduct or asserted your legal rights? If so, you may have a wrongful termination claim for retaliation or whistleblowing. Many employment laws prohibit employers from firing employees for exercising their rights under those laws. Employees are also protected for whistleblowing: reporting that the business has broken laws unrelated to workers' rights (such as laws regulating consumer protection, product safety, government contracts, or shareholder fraud).
This article explains some of the laws that protect you from retaliation or protect you as a whistleblower, as well as how to make a claim for retaliation or whistleblowing.
Retaliation occurs when an employer or superior punishes an employee for engaging in a legally protected act. These protected acts can range from reporting a safety code violation, reporting fraudulent activity, taking leave to care for a family member, or even reporting harassment or workplace discrimination. Retaliatory behavior is an adverse employer's action including firing, salary reduction, reduced hours, job reassignment, demotion or any form of other negative action.
The California Fair Employment and Housing Act (FEHA) prohibits punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment. Asserting your FEHA rights is protected by California law, and if your employer retaliates against you to asserting your rights, you may have a workplace claim.
FEHA protect you from employment discrimination when it involves:
The law also protects employees who cooperate in a California Civil Rights Department (CCRD) investigations or serve as witnesses in a CCRD investigations or litigation. A recent Supreme Court case confirms that an employee or supervisor's participation as a witness in an internal investigation is protected, too. And various California laws protect other types of activities, such as "whistleblowers" who complain of unsafe working conditions or those who take legally-protected medical leave.
A number of federal and state laws protect whistleblowers in most companies. The Sarbanes-Oxley Act and the Consumer Financial Protection Act are two main acts affecting the financial sector. In addition to preventing fraud, these acts work together to protect whistleblowers. They make it illegal for companies to retaliate against employees who speak out on regulation violations, shareholder fraud and securities fraud.
Retaliation encompasses a variety of negative behaviors including firing, demoting or disciplining an employee for reporting a perceived problem.
Sometimes it's clear that an employer's action has a negative impact—for instance, when an employee is fired. But sometimes it's not. In those cases, according to the U.S. Supreme Court, you must consider the circumstances of the situation. For example, a change in shift may not be objectionable to most people, but it could be very detrimental to a parent with young children and a less flexible schedule.
On the other hand, if something clearly negative happens shortly after you raise a complaint, you'll have good reason to be suspicious. For example, you might have a case if your supervisor fired you for not being a "team player" a week after you complained to management about him sexually harassing you. But remember, not every retaliatory act is obvious or necessarily means your job is threatened. It may come in the form of an unexpected and unfair poor performance review, the boss micromanaging everything you do, or sudden exclusion from staff meetings on a project you've been working on.
If you suspect your employer is retaliating against you, the first step is to talk to your supervisor or a human resources representative about the reasons for these adverse actions. You can hope that your employer might have a perfectly reasonable explanation and was acting in good faith.
If your employer can not give you a legitimate explanation, voice your concern that you are being retaliated against. You should point out that the negative action took place only after speaking out against the company, and ask that it stop immediately.
If the company is not willing to admit its wrongdoing or correct the problem, you may have to take your concerns to the CCRD.
If you suspect retaliation and your employer will not correct the problem, you will need to show a link between your complaint (or other reasons that you believe triggered the retaliation), and the employer's retaliatory behavior.
To do this, document the allegedly retaliatory behavior. Also, keep track of historical information prior to when you made your complaint. For example, if your boss claims your performance is poor after you make a complaint, be sure to dig up any email messages or other documents showing that your boss was pleased with your work performance before the complaint.
You should also consider consulting with an employment lawyer if you believe you have been subjected to retaliation, especially if you've been fired or have lost of a significant amount in wages. A lawyer can tell you how strong your case is, what compensation you are likely to recover, and more.
Retaliation in the workplace is illegal and wrong. Workplace retaliation victims should speak to a skilled employment lawyer from Freeburg & Granieri, APC, to ensure their claim is successful.
Call an employment lawyer at Freeburg & Granieri today about the benefits of an attorney-client relationship in your workplace retaliation case.
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