Workplace Retaliation and Protected Activities
What are the protected activities to workplace retaliation? Many employees who are either discriminated against in the workplace, face unsafe working conditions, or work for wages that are too low compared to others in their fields often wonder what they can do to create change in their workplaces. In an age where unions hold less sway and where workplace abuses happen more frequently in small businesses, employees often view themselves as powerless to raise their concerns to employers. Not true. Under the National Labor Relations Act (NLRA), which is a Great Depression era workers’ rights law, all employees have certain organizational rights, whether or not there are members of a formal labor union.
The Definition of Protected Activity Under the NLRA
The NLRA was designed to protect workers by giving them the ability to organize and protest unfair employer practices or low wages without fear of being fired. Under Sections 7 and 8 of the NLRA, employees are entitled to engage in “protected concerted activities” without being fired or retaliated against in any way. Specifically, Section 7 grants all employees the right to unionize if they so choose and Section 8 allows employees to engage in activities aimed at improving worker conditions.
Fortunately, the definition of protected concerted activity is quite broad. Under the NLRA, a protected concerted activity is any activity engaged in by two or more employees to try and improve working conditions. The improvements sought can take the form of higher pay, better working hours, safer working conditions, or reduced workload. In some cases, the activities of only one employee can be considered protected concerted activity if the employee either involves other employees or is acting on behalf of a group of employees.
Examples of Protected Concerted Activity
The textbook example of a protected concerted activity is a workers’ strike; however, a strike is not the only type of concerted activity that employees are allowed to engage in. In fact, any protest, whether formal, informal, loud, quiet, large, small, noticeable, or private can be considered protected concerted activity. For example, a posted notice board voicing employee concerns or discussions about working conditions or pay can all be considered protected activities.
One recent example that involves the use of modern technology can help illustrate the extent of the broad scope of Section 8 of the NLRA. Employees who send pictures of unsafe working conditions back and forth to each other on social media and discuss solutions to those problems are engaging in a protected concerted activity. Similarly, gathering on social media and forming online groups on platforms such as Facebook to discuss workplace concerns is also considered protected activity.
What to Do if an Employer Retaliates or Bans Concerted Activity
Under the NLRA, employers must permit employees to engage in concerted activities that can help improve working conditions. If an employer illegally retaliates against employees engaged in protected activities, then the employees can look to the National Labor Relations Board (NLRB), a federal agency tasked with regulating employers and enforcing the NLRA, for assistance. Additionally, employees can hire an attorney to help protect their right to engage in concerted activity in the workplace.
Detailed Examples of Protected Activities
Protected activities are specific actions employees can take without fear of retaliation from their employer. These activities include, but are not limited to:
- Filing a Complaint: Reporting discrimination, harassment, or other unlawful practices, whether internally or to a government agency like the Equal Employment Opportunity Commission (EEOC).
- Participating in Investigations: Cooperating with internal investigations or inquiries conducted by regulatory bodies about workplace misconduct.
- Requesting Accommodations: Asking for reasonable accommodations due to disability, pregnancy, or religious practices under laws like the Americans with Disabilities Act (ADA).
- Reporting Safety Violations: Highlighting concerns related to workplace safety or health hazards, which are protected under laws such as the Occupational Safety and Health Act (OSHA).
Providing specific examples helps employees understand the broad range of activities that are protected under workplace retaliation laws.
Legal Framework and Statutes
Protected activities are grounded in various federal and state laws designed to uphold employee rights. Key statutes include:
- Title VII of the Civil Rights Act: Protects employees from retaliation when they oppose discriminatory practices.
- Americans with Disabilities Act (ADA): Safeguards employees who request reasonable accommodations for disabilities.
- Family and Medical Leave Act (FMLA): Covers employees taking leave for family or medical reasons.
Understanding these laws empowers employees to recognize when their actions are legally protected and what statutes their rights fall under.
Consequences of Retaliation
Employers who retaliate against employees for engaging in protected activities may face serious legal consequences. Potential outcomes include:
- Lawsuits: Employees may file lawsuits seeking damages for lost wages, emotional distress, and other harms caused by retaliation.
- Penalties and Fines: Employers found guilty of retaliation can be subject to fines and sanctions imposed by regulatory agencies.
- Reinstatement Orders: Courts can order employers to reinstate employees who were wrongfully terminated or demoted as a result of retaliation.
These consequences underscore the importance of compliance with anti-retaliation laws and serve as a deterrent against unlawful employer behavior.
Employee Rights and Employer Responsibilities
Employees have the right to engage in protected activities without fear of retaliation. Employers, in turn, have a responsibility to:
- Refrain from Retaliatory Actions: This includes firing, demoting, harassing, or any other adverse action against an employee for participating in protected activities.
- Implement Anti-Retaliation Policies: Clear policies and training programs can help prevent retaliation and educate both employees and managers about their rights and obligations.
Emphasizing these rights and responsibilities promotes a fair and respectful workplace environment.
How to Prove Retaliation
Proving retaliation requires demonstrating a connection between the protected activity and the adverse action taken by the employer. Key evidence can include:
- Documentation: Emails, memos, or other written communications that show timing or intent behind the employer’s actions.
- Witness Statements: Testimonies from colleagues who can corroborate the employee’s claims of retaliation.
- Timeline of Events: A clear sequence showing how the protected activity was followed closely by negative actions from the employer.
Guidance on gathering evidence helps employees build a strong case if they decide to pursue legal action.
Steps to Take if Retaliated Against
If you believe you have been retaliated against, consider taking the following steps:
- Document Everything: Keep detailed records of incidents, including dates, descriptions, and any witnesses.
- Report the Retaliation: Follow your company’s internal grievance procedures or report directly to external bodies like the EEOC.
- Seek Legal Counsel: Consult with an attorney specializing in employment law to understand your rights and options.
These proactive steps can help protect your rights and provide a path forward in seeking justice.
Retaliation Prevention Tips for Employers
Preventing retaliation is critical for maintaining a positive workplace culture. Employers can adopt the following best practices:
- Train Managers and Employees: Regular training sessions on anti-retaliation policies help reinforce the importance of compliance.
- Establish Clear Reporting Channels: Ensure employees know how to report concerns without fear of retaliation.
- Monitor for Retaliation: Regularly review actions taken against employees who have engaged in protected activities to ensure compliance.
Proactive measures can help mitigate risks and foster a safer, more inclusive work environment.
FAQs or Common Misconceptions
Q: Can an employer retaliate if they disagree with the employee’s complaint? A: No, retaliation is illegal regardless of whether the employer believes the complaint is valid.
Q: Is retaliation limited to firing an employee? A: No, retaliation can include any adverse action, such as demotion, harassment, or negative performance reviews.