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Don’t Let Your Employer Intimidate You

You are protected if you speak the truth in good faith about unlawful practices.

If you have knowledge of unlawful practices and are questioned during an investigation, your conduct is protected. Answer truthfully. The U.S. Supreme Court has held that anti-retaliation laws protect an employee who speaks out about discrimination not on her initiative, but in answering questions during an employer’s internal investigation.

Good faith does not mean you have to be proven correct. In other words, retaliation law protects employees who assert rights protected by law even when the employees are wrong about whether rights were violated. As long as the employee has a good faith belief that the conduct at issue was unlawful, protection exists.

Collective action:

Employees who collectively complain about terms and conditions of their employment, whether or not they are members of a union, are protected by the National Labor Relations Act (NLRA). Also, the Civil Rights Act of 1964 prohibits retaliation against actions taken in opposition to unlawful discrimination. For public employees, the United States Constitution provides protection from retaliation for exercising their right to free speech under certain circumstances when the speech is not part of the performance of their normal job duties. There are other specific protections, such as environmental laws and safety laws prohibit retaliation against whistleblowers who report violations of those laws.

Evidence necessary to prove retaliation:

You need to prove that you engaged in protected conduct. The clearest way is a written complaint that opposes unlawful conduct which cannot be misconstrued later. Sending it in a manner that can be verified is also important.

Adverse employment action:

In order to establish that you were retaliated against, you will then need to prove that your employer took adverse action. Adverse action includes such actions as suspension, demotion, reduction in hours, and termination. There are specific legal requirements and the need to establish a causal connection to your speaking out. Examples of evidence helpful to proving a causal connection:

  • A failure to investigate the employee’s complaint;
  • A close connection in time between the protected conduct and adverse action;
  • Unequal and more favorable treatment of employees who do not complain;
  • A campaign of harassment directed at the reporting person(s); and
  • Certain other hostility toward the employee.

A lawsuit against your employer is not necessary to stop the retaliation:

  • Be the best employee, be polite, professional and calm. There is no need to give your employer any justification for retaliation.
  • Keep documentation of what happens to you. Print documents and save copies. Do not forward them to your personal email.
  • If reprimanded, respond timely and professionally with a rebuttal for your file. It is a fine line between standing up for yourself and appearing defensive in a manner that gives the impression that you do not want to improve alleged performance problems. This may be a point on which to involve a lawyer for specific advice.
  • Explore other employment opportunities. Plan an exit strategy just in case. This may not be your best fit and if unlawful conduct is happening in a manner that you believe is against what you stand for than you need not take or witness the abusive, unlawful environment. Often it can get worse.

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