If your employer takes negative, adverse action against you because you engaged in a protected activity, including reporting illegal activity, discrimination, or harassment, your employer is engaging in retaliation. In Minnesota, employers cannot retaliate against employees for protecting or exercising their rights, including the right to report illegal or damaging behaviors.
The Equal Employment Opportunity Commission (EEOC) enforces anti-discrimination laws, and retaliation is the most common type of federal discrimination case. If you believe you have experienced retaliation, you should talk with an employment lawyer as soon as possible to learn more about your rights, determine whether you have a potential workplace retaliation case, and how to prove workplace retaliation.
Before you start to move forward with your case, you may have questions about how an employment law attorney evaluates potential retaliation and what might be required in court to prove workplace retaliation.
What Do You Need to Prove in a Workplace Retaliation Claim?
In order to file a workplace retaliation claim, you will need to show three key factors:
- That you engaged in a protected activity
- That the employer acted with adverse action
- That the adverse action taken against you was retaliation
An employment lawyer experienced in workplace retaliation cases will often take a close look at the circumstances you faced at work, including the protected action you took and how your employer responded, to determine whether you have grounds for a workplace retaliation claim and how difficult it might prove to establish your rights.
What Is Considered a Protected Activity?
According to Minnesota law, there are several key activities that you can engage in without retaliation by your employer. They include:
- Reporting a company in violation of a state or federal law or regulation
- Refusal to engage in illegal activities
- Reporting the way a company treats its employees, when that treatment is in violation of state or federal laws and regulations
- Participating in an investigation into a company accused of engaging in any type of illegal activity
- Reporting company conduct or employee treatment that violates state or federal laws or regulations to an external entity, including governing boards and those that may engage in investigation
- Filing a claim against an employer under the False Claims Act, IRS, SEC, and CFTC whistleblower statutes
If you have participated in a report or investigation against your employer, you likely have some type of proof of your involvement, even if your initial report was made anonymously. You should always keep documentation of any interactions outside your work computer or login.
What Is Considered an Adverse Action?
Adverse actions include any action that negatively impacts your employment or your job duties. For example, you may note adverse actions that include:
- Demotion
- Transfer
- Threats or unfair treatment in the workplace
- Wrongful termination
- Unwarranted disciplinary actions, including undeserved writeups
- Reducing pay or hours
- Denying opportunities for career progression
- Unfair employee reviews
- Denying regular employee benefits
Many of these adverse actions can lead to significant financial ramifications, especially if you lose your source of income entirely or have your hours reduced substantially. Those financial ramifications can become a key part of your workplace retaliation case.
How Can You Prove an Adverse Action Was Retaliation?
In order to prove an adverse action was retaliation, it must come in response to your participation in one of the protected events named above. Not every negative or adverse event at work counts as retaliation, even if it occurs after one of those protected events. For example, if you have a consistent issue that regularly crops up in your employee reviews, and it appears again after you have reported discrimination in the workplace, that was likely not a retaliatory action.
In many cases, your employer may try to claim that an adverse action was not retaliation, even if you feel that it was. Collecting evidence can help make it easier to prove workplace retaliation.
Pretextual Reasoning
Sometimes, employers will try to claim that they have engaged in an adverse action for another reason entirely. In order to show that your employer actually committed a retaliatory action against you, an employment law attorney will attempt to establish that the company engaged in pretextual reasoning: that the company’s excuse is exactly that, and that you did not deserve the action taken against you.
Suppose you were fired shortly after your harassment claim at work. Your employer might claim that you were fired as a result of overall poor job performance. Your employment lawyer, on the other hand, might take a look at your performance reviews or your metrics at work and establish that you were not a low performer, or that any reason given for firing you is not reasonable under the terms issued by your employer. That information will then show that you have a workplace retaliation case.
Temporal Proximity
Temporal proximity, or how close in time the event was to your participation in a protected activity, can help establish that you suffered retaliation in the workplace. Suppose you have worked for a company for several years, with an excellent track record. If you are fired suddenly after engaging in a protected activity, or have your hours reduced, or are swapped suddenly to a schedule that does fit your needs, it could show the potential for workplace retaliation. It may surprise you just how many employers act swiftly to retaliate against employees who have engaged in protected activities, if those employers intend to take that type of action against the employee.
If, on the other hand, that adverse event occurs quite some time after the protected event, it may prove more difficult to establish retaliation.
Lack of Fair Application
Your employment law attorney may take a look at how other employees in similar circumstances are treated at work, based on the reason given by your employer for an adverse action taken against you. You might find your hours reduced after a comparatively minor error at work. Your employer might note safety concerns, or even that your error has cost the company money. However, your lawyer may want to take a look at how other employees have been treated after similar errors. Were they allowed to continue handling their usual schedules? How were they treated?
Likewise, a lawyer may want to look at how employees are treated at the company overall, especially in cases of more subtle retaliation. Suppose, for example, that you find yourself struggling to get opportunities to advance your career. You are unable to get opportunities to attend conferences or additional training. Your employer cites budget cuts – yet other employees are regularly able to have their requests approved. In this case, your employer’s reluctance to help you with your career could indicate retaliation.
What Can You Do If Your Employer Is Retaliating Against You?
If your employer is retaliating against you, it’s important to take action to help protect yourself, prevent further retaliation, and ensure that your rights continue to be protected. In some cases, you may have the right to compensation for the losses you have faced, including repayment for lost wages or damages for the suffering you have faced in the workplace. However, the way you react could make a huge difference in your ability to file a claim and the compensation you can recover for your losses.
1. Keep a record of any adverse actions taken against you.
Document every suspicion that you have about workplace retaliation against you. Keep record of any communications, including emails, text messages, or screenshots of internal messages. Do not rely on being able to access that information on the company server or network. Instead, print out documentation, email it to yourself, and store it off-site. Keep copies of those important documents in more than one location.
In each record, make sure you include the date and time as well as specific information about the action taken against you.
You may also want to specifically record any losses you have faced because of the retaliation, including the loss of specific benefits or income.
2. Contact an employment lawyer to learn more about your rights.
Do not attempt to handle workplace retaliation on your own or sit in silence. Your employer has likely already engaged in at least one egregious breach, including harassment or illegal action. They are taking further illegal action in their retaliation against you. You do not want to risk further actions against you in the workplace. Contact an experienced employment lawyer to learn more about your next steps, from how to handle current interactions with your employer to what you should do if you can no longer work in your current workplace.
Have you suffered retaliation in the workplace? An employment lawyer can help. Contact MSB Employment Justice today to learn more about your rights.
