Most people are aware of lawsuits for wrongful termination from employment, that a person who believes he or she was fired for a “bad” reason can seek action against that employer. Many people also know that the law protects employees from discrimination and harassment. But the crucial point many employees miss is the nuance of retaliatory actions against employees, not just for filing complaints about discrimination or harassment but also for filing reports of unsafe work environments.
Retaliation occurs when an employer acts in response to an employee engaging in a legally protected activity. Examples of these legally protected activities are filing a complaint with human resources about sexual harassment and reporting hazardous conditions in the workplace to the Occupational Safety and Health Administration (OSHA). Please see our recent article about “How to Report an Alabama Company for Unsafe working Conditions.” Whether you complain to an internal, state, or federal source, your complaint is not grounds for adverse treatment. Retaliation can include any negative treatment or action on the job, not matter how subtle, but the circumstances of the situation must be considered. The Equal Employment Opportunity Commission (EEOC) gives several examples that, depending on the facts of the specific case, are considered retaliation by an employer:
- Giving a lower score or rating on a performance evaluation than is earned
- Transferring an employee to an undesirable/less desirable position or location
- Physical or verbal abuse
- Threatened or filed reports against an employee such as police reports or immigration status
- Changes in employee work schedule (for example: to conflict with family responsibilities that employer is aware of)[2]
If the actions an employer takes against you, as the employee, would deter a reasonable person in the situation from making a complaint in the future, it constitutes illegal retaliation.[3]
The first thing to be aware of when considering pursuing legal action against retaliation is time. OSHA administers more than twenty whistleblower statutes. These are statutes that protect an employee who files a complaint about an employer’s failure to comply with safety and health standards. Each of these statutes varies in the amount of time an employee has to file a complaint of retaliation, which range from 30 days to 180 days. Within this time frame, you can file with OSHA online; through fax, email, or mail; telephone; or in-person at one of the local OSHA regional offices. When filing a complaint, though not required, it is helpful to have on-hand some documentation of the retaliation. Such documents could include copies of termination letters, copies of pay stubs, documentation of original complaint that gave rise to the adverse treatment, and copies of disciplinary actions. OSHA will then conduct interviews of each complainant to determine the need for further investigation. A determination is then made regarding the remedy that will restore you, the employee, back to the status you maintained before the adverse retaliation.[4]
While the best place to start when faced with retaliation is your immediate supervisor or human resources representative, consider contacting an experienced employment lawyer who knows your rights and will ensure you are given fair treatment.
If you are hurt on the job due to unsafe working conditions, seek legal counsel, as you may be entitled to workers’ compensation or other benefits. As we have since 1967, we will continue to protect the legal rights of our clients – those who are hurt on the job while working for Alabama employers. If you have been injured on the job and want to learn your rights, please consider contacting the Nomberg Law Firm. Our office number is 205-255-1270 and website www.nomberglaw.com. Our office is located in Birmingham, Alabama. We handle cases throughout our great State.
Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. In 2019, Bernard was named a Super Lawyer for the 7th year in a row.
[1] http://www.radicalcompliance.com/2019/02/27/podcast-ccos-facing-retaliation/.
[2] https://www.eeoc.gov/laws/types/retaliation.cfm.
[3] https://www.nolo.com/legal-encyclopedia/workplace-retaliation-employee-rights-30217.html.
[4] https://www.whistleblowers.gov/complaint_page.