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Explaining Retaliation in Employment Law

Legally speaking, it is illegal for employers to retaliate against an employee for reporting a violation of employment law by their employer. However, employers often take retributive measures against employees anyway, resulting in substantial professional consequences for employees who are simply trying to do the right thing. But what exactly is retaliation in an employment law context, and what should you do if your employer retaliates against you?


 

What is Retaliation?


In employment law, “retaliation” specifically refers to any action taken by an employer to punish an employee for reporting a violation of discrimination law, whether through an internal reporting process (such as submitting a Human Resources complaint) or to a government agency (such as the Equal Employment Opportunity Commission). An employer may retaliate against an employee even if they were not the one who suffered from the original violation. Retaliation is considered a type of discrimination, and is protected against by law.


What Does Retaliation Look Like?


Retaliation can take many forms. Some of the most common ways that employers retaliate against employees include:


  • Denying employees raises or promotions

  • Cutting employee pay or benefits

  • Taking disciplinary action against the employee

  • Excluding the employee from meetings or trainings

  • Transferring the employee to an undesirable position or department

  • Firing the employee or forcing them to retire

  • Giving unfavorable references to future employers

  • Denying or suspending severance payments


How Do You Prove Retaliation?


As Steven Sack says in his book, Fired!, “Essentially, to state a prima facie claim of retaliation, it is necessary to demonstrate that you engaged in a protected activity, suffered a materially adverse action, and that the protected activity you took caused the materially adverse action.” In other words, you need to demonstrate that you reported an employment law violation, that you suffered some kind of punishment, and that your punishment is directly tied to your report. This can sometimes be more difficult than it sounds, however, as employers are usually clever enough not to say they are punishing their employees for snitching on them.


What Can You Do If You Are Retaliated Against?


If you are a victim of employment retaliation, you can report it to a government agency, such as the EEOC or the New York Department of Human Rights. In addition, you may be able to seek compensation for the harm you have suffered by bringing your employer to court. However, you should first speak to a lawyer with experience handling employment law issues, who can advise you on your best course of action.


Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer with more than 41 years’ experience handling the many aspects of employment law. His new book, “Fired!: Protect Your Rights & FIGHT BACK If You’re Terminated, Laid Off, Downsized, Restructured, Forced to Resign or Quit,” is available in hardback, and contains valuable advice on dealing with employment and labor law issues. To purchase the book, feel free to contact Steven Sack at 917-371-8000 or visit the website at legalstratpub.com. To inquire about a legal matter, please feel free to contact attorney Steven Sack at 917-371-8000 or stevensackatty@hotmail.com.

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