How to prove workplace retaliation?
The biggest obstacle to proving retaliation comes in the form of employees not documenting, documenting, documenting.
If you sense there is illegal conduct going on in the workplace, whether it be sexual harassment or discrimination, or violations of OSHA, of fraudulent insurance or Medicare/Medicaid billing, you have to document that in an email to HR and keep a copy of the email for yourself.
You would be amazed how many companies can make documentation “disappear.”
Continue to document in a personal journal and through HR any way in which your work environment has changed since you first lodged your written complaint.
It is also important for the employee to monitor performance reviews and prior raises. One of the first things we look it is the personnel file of our client.
If it shows great reviews and pay increases prior to the complaint about illegal activity, and everything takes a down hill slope from there, that is great evidence for our case to demonstrate the causation between the two events.
Of course, we rarely are going to have an instance where there is a smoking gun saying “FIRE JAMES BECAUSE HE IS COMPLAINING ABOUT OUR ILLEGAL CONDUCT.” Under the law, we use what is called circumstantial evidence to prove the retaliation (we discuss this in more detail below).
The timing of the events, along with the sudden change in what occurred in the workplace, leads to logical inferences of retaliation.
Simply said, everything fine before complaint, and every thing bad after complaint= RETALIATION.
Timing is important under the law. The law requires that the timing of the complaint and the time of the firing/demotion/retaliation generally be three (3) months or less. So, if the employee complained in January and nothing happened until December (no different treatment), that claim is not going to survive a judge’s scrutiny in court under the law.
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Finally, not everything an employee complains about is protected for retaliation purposes. The complaint has to be about a violation of a law, rule, or regulation, or what the employee reasonably believes to be a violation of a law, rule, or regulation. If the employee complains about illegal activities and gets fired for same, that is retaliation.
If the employee complains that the coffee is not good enough in the office and gets fired, that is not actionable retaliation. The second example may not be fair, but it is not illegal. There is a big difference between unfair and illegal. We cannot do anything about unfair, but we can fight and fight hard for you when it’s illegal.
Employees have rights and are protected from retaliation in the workplace under Federal Law. That means that even in “at-will” States like Florida those laws apply protecting employees from wrongful termination in Florida. Employer retaliation is punishing an employee for any of their protected activities (discrimination and harassment). Successful retaliation lawsuits against employers require three connected events.
Three Keys to Employer Retaliation Cases
- You’re a victim of discrimination or harassment (Protected Activity)
Example – You reported harassment or discrimination.
- Action was taken against you by your employer (Negative Action)
Example – You were fired or demoted.
- The two actions above are related (Causation)
Example – You reported harassment and were fired because of this.
To win your retaliation case against an employer these need to be proven. The first and second keys are known since you reported harassment and were fired.
Proving the causation (the connection between the first two events) on your own, is the most difficult aspect. Because proving causation is difficult professional legal representation should be utilized.
Protected activities and negative actions are legal terms to understand before bringing a case against private companies or government entities.
What are Protected Activities? (They are Your Rights)
Protect Activities are an employee’s right “to be free from employment discrimination including harassment.” These rights are guaranteed by the Equal Employment Opportunity Commission (EEOC) and held-up by the Supreme Court of the United States.
Member of a protected class? Each one of us has a protected set of traits. As outlined by the Federal Government, it is illegal for employers to discriminate or harass applicants and employees who process these qualities.
- National Origin
- Political Ideals
- Military Service
- Relationship status
- Health and pregnancy
These are the protected traits defined and set forth in the American with Disabilities Act, Age Discrimination in Employment Act, Title VII/Sec. 1981 in the Civil Rights Act and False Claims Acts. The EEOC is responsible for enforcing these laws and investing employer violations.
The violation of an employee’s rights comes in a variety or forms. Some are subtle and others are more obvious. Considering whether or not your employer is disregarding your rights?
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Ask yourself if they are acting in “good faith” and would my claim against them be reasonable. Remembering some examples of protected activity violations is a good idea.
Unlawful retaliation against an employee for:
- Bringing a complaint, participating in a investigation or filing a lawsuit.
- Being an honest witness in an EEO Case
- Discussing employment discrimination or harassment with a boss, supervisor or manager.
- Honestly answering questions during investigations of alleged discrimination or harassment
- Refusing to follow instructions or vage company policies that result in discrimination
- Turning down sexual advances or protecting others from sexual harassment
- Requesting access for a disability or observance of religion practice
- Asking coworkers or supervisors about wages to uncover discriminatory wages
When employers break these rules they are liable. The next step your lawyer will take involves the negative actions surrounding the protected activity violation.
What are Negative Actions? (Employer’s Conduct)
An employee has the courage to report what they reasonably believe is discrimination or harassment against them. Now it is the employers turn to act responsibly or unlawfully.
The employer has committed an unlawful action if they choose to fire, demote or transfer a worker based on a violation of that employees protected rights. Firing, demoting or transferring an employee are obvious and extreme actions. See also – Florida whistleblower legal protections.
Unscrupulous employers will use other subtle methods when dealing with employees who assert their rights against the company’s corrupt and harmful actions.
Corrupt Employer negative actions are violations if they:
- Make an employee’s task and activities more difficult.
- Intentionally changing an employee’s schedule without reasonable cause so it conflicts with their daily life
- Spreading false innuendo and rumors about the employee to provoke negative reactions in the workplace
- Negatively treating employee family members
- Industry blackballing
- Canceling a contract with an employee’s relation based on an EEO claim
- Increased scrutiny of job performance
- Participate or initiate verbal or physical abuse
- Lowering performance evaluations and denying pay increase based on the reporting of protected activities.
- Reprimanding a worker for informing human resources, legal representatives, counselors, managers, authorities or the EEO about discrimination, prejudice or harassment in the workplace.
Whether your employers negative actions are obvious (termination) or more underhanded (spreading rumors) the most challenging thing to prove in a workplace retaliation lawsuit is causation.
What is Causation? (Connected Actions)
When victims of employer retaliation have the their rights violated – then suffer a negative action by that employer. They must provide a link between the two which proves causation. Why this can be difficult to prove is that most dishonest employers will not tell you: “You’re getting demoted because you reported on our discriminatory hiring practices” or “you’re fired because you told me you considered reporting this to HR.” If this circumstance happened you potentially have a winning case.
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* Employment Attorney Tip: Your employer’s social media account may be used to uncover proof in support of violation claims.
Most of the time a link between the the two has to be reasonably established through evidence and testimony. Keep in mind this is not criminal court. Beyond a reasonable doubt does not apply in civil cases.
Courts interpret the laws regarding actions against employers broadly. This is done to provide protection for those who fear coming forward. To establish a reasonable list of evidence expert employment law attorneys will look to three things.
Three important pieces of workplace retaliation evidence.
- Timing – Also known as temporal proximity. This is the time between a protected activity and an negative (adverse) action. Proving there was a reasonably short time between the employee’s action and the company’s action against the employee is extremely beneficial to the case.
- Awareness – Showing “because of this”. The employee needs to prove the individual who is responsible for the adverse action knew about the reporting, complaint or violation of an employee protected right by the time of the negative action.
- Reasonable Explanation – Employer’s must be able to show a legitimate reason for taking negative action against the employee. Without this judges and juries find the employer less credible and see the adverse action as the cause.
Not all of these factors and evidence need to be present to win a settlement from a company or government agency. The accumulation of partial evidence, employee testimony, social media history and establishing a pattern of employee and employer behavior are just as beneficial.
Gathering enough evidence and filing a lawsuit takes time and resources. The last thing you want is for time to run-out on your claim. Speaking with employment law attorney will ensure you file properly before the statue of limitionations passes.
Florida Employment Law (Statute of Limitations)
Florida law allows employees to file a claim against employers with the Florida Commision on Human Relations (FCHR) or the EEOC for up to one year from the date you believe a negative action was taken against you. To preserve your claim under Federal guidelines you must file with 300 Days of the adverse action. These agencies work together a cross filing is possible.
Use your voice in the workplace!
Taking the brave action to file a claim against a bad employer can help protect others from the business’s discriminatory actions. Those who suffer the unlawful actions should at least receive a free consultation from a qualified employment lawyer in Florida.
Let an expert help and protect you through this trying part of your life. The benefit of an employer retaliation settlement can ease the burden on yourself and loved ones.