Retaliation / Whistleblowing
What is Retaliation?
Retaliation may be defined as any action(s) an employer takes against an employee in response to the employee lawfully asserting her rights under federal and state employment laws. Under federal and New York State laws, an employee cannot be retaliated against for complaining of an employer’s unlawful treatment or for filing a lawsuit against an employer.
In sum, any action taken by an employer, no matter how subtle, that may be interpreted as a punishment, penalty, or form of “payback” against an employee who makes a complaint may be unlawful.
Retaliation Legalities
First, under Title VII of the Civil Rights Act (Title VII), as well as the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA), and the Age Discrimination in Employment Act (ADEA), employees are protected if they choose to make a formal or informal complaint of Workplace Discrimination. In New York, Retaliation is also prohibited by even broader anti-discrimination laws such as the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL). The NYCHRL and the NYSHRL both include all the federal protections for discrimination based on race, color, national origin, sex, age, religion, and disability, but these New York laws cover even more protected classes, such as marital status, partnership status, gender identity, and sexual orientation. However, despite these differences, all of these laws all pronounce sweeping prohibitions on Retaliation by employers and offer a broad protection for employees who wish to file a complaint suit against their employers for unlawful discrimination.
Additionally, in recent years, following the crash of the financial markets at the turn of the century, Congress recognized the importance of encouraging employees to report misconduct in the workplace, and subsequently enacted new laws to protect employees who acted as “whistleblowers” in their workplaces. Congress passed multiple laws, including the Dodd-Frank Wall Street Reform & Consumer Protection Act and the Sarbanes-Oaxley Act, with the intention of extending protections against Retaliation to employees who decide to speak up and call necessary attention to illegalities occurring within their workplace. Accordingly, today, these laws protect employees from reprisal for cooperating with regulators, complaining of unlawful wage practices, filing agency complaints, reporting fraud or other illegal activities, or refusing to partake in illegal conduct.
It is important to note, however, that New York is an at-will state for purposes of employment, which means an employee can be fired at any time, for any reason or no reason at all. This afford employers a great deal of latitude in making such employment decisions, but the law still specifically prohibits employers from taking unlawful actions against an employee for complaining about violations of labor law or for filing a lawsuit regarding such violations.
Making a Retaliation Claim
To sustain a viable claim of Retaliation you must be able to prove that you have been retaliated against, which means you must be able to show that you suffered an adverse action of some kind as a result of your participation in an activity protected by the law.
(1) The Adverse Action
New York State and federal laws weigh adverse actions a bit differently, with New York allowing for more to qualify as adverse than federal laws. However, both bodies of law agree on one primary aspect of an adverse employment action: an adverse action is any action that would “be reasonably likely to deter an employee” from exercising her rights under the law.
Some examples of actions that qualify as adverse actions under New York State and federal law include:
- Termination
- Demotion
- Threats
- Being passed over for a promotion, despite being the best-qualified candidate for the job
- Sever reduction in hours
- Suspension
- Reassignment to a less desirable job
- Receiving negative reviews not justified by facts
- Being intentionally subjected to a hostile work environment after filing a complaint
(2) The Protected Activity
Additionally, employees making a retaliation claim must also show that they engaged in a protected activity. A “protected activity” is an activity that an employee can lawfully choose to do that is protected from Retaliation under the law.
Under multiple New York State and federal laws, employers are forbidden from engaging in any sort of Retaliation against an employee who has lawfully submitted a report, filed a suit, appeared as a witness, cooperated with the authorities, took any legal action, or launched a formal or informal complaint about illegal activities occurring in the workplace. These illegal activities can include Wage & Hour violations, Sexual Harassment, Discrimination, Fraud, Tax Evasion, Abuse, or any other unlawful activities.
Any employee who reports one or more illegal activities occurring in the workplace, and thereafter goes to court or works with government authorities regarding the activities, are completely protected from Retaliation, under both federal and state laws.
(3) The Causal Connection
To prove that the adverse action was caused by your participation in a protected activity, you must establish that there was a causal connection between your protected activity and the action taken against you. Some examples demonstrating this causal connection may include:
- The adverse action happened right after the employer found out about your protected activity
- The reasons your employer gave for the adverse action do not match your past performance reviews
- Other employees have committed the same infraction you’re accused of and were not punished as harshly
If you can show the three things listed above, you may indeed have suffered from workplace Retaliation. If you believe you have been Retaliated against at work, you need to contact an experienced Employment Discrimination attorney as soon as possible. Retaliation and Anti-Discrimination claims have tight time limitations that, if missed, can completely prevent your ability to protect and vindicate your rights.
Shalom Law Protects “Whistleblower” Rights in NYC
Legally, it has been long established that employees often remain silent when witnessing unlawful conduct or discrimination at the workplace, particularly because of the immense pressure employers press upon them.
Thankfully, legal safeguards for those who report malfeasance and discrimination have been enacted to prevent retaliation. The attorneys at Shalom Law are constantly refamiliarizing themselves with all of these protections that are in place, and can, therefore, defend whistleblowers of all kinds who have been subjected to unlawful retaliation.
It can be hard to overcome the threat of job loss or social stigma surrounding reporting your superiors’ illegal behavior, but if you build up the courage to do so, you are legally protected. You cannot be retaliated against under the law. But if your employer doesn’t like to obey the law, Shalom Law is here to help.
Help for New York Whistleblowers
It is not a simple decision to become a whistleblower. Having an experienced, professional, and compassionate legal team to guide and counsel you through the process can make the journey a lot smoother. The lawyers at Shalom Law have experience fighting for whistleblowers and victims of reprisal or retaliation across the spectrum – from restaurant kitchens to boardrooms.
If you are contemplating becoming a whistleblower, or have already stepped forward and are enduring retaliation, contact Shalom Law at (718) 971-9474.