Retaliation and Wrongful Termination

An employer may fire an employee for many different reasons. But taking adverse action against a worker engaged in certain protected activities can constitute unlawful retaliation and wrongful termination. Federal law protects employees from retaliation or revenge and for participating in protected activities. Examples of protected activities include reporting unlawful activities or participating in an investigation into the practices of your employer.

See FindLaw's Wrongful Termination section for additional articles.

Federal Protections Against Retaliation

In the employment realm, retaliation occurs when an employer punishes an employee for participating in a protected act. Examples of punishments include but are not limited to, demotion or firing.

Many federal laws protect employees against retaliation from their employers. Some of the most commonly-invoked protections are found in the Civil Rights Act, Age Discrimination in Employment Act, Americans with Disabilities Act, and Equal Pay Act. If an employee, for example, participates in an investigation of possible discrimination in their employer's hiring practices, that employee cannot be terminated for doing so.

Many other laws also protect against retaliation. Under the Family and Medical Leave Act, for example, employers may not demote or fire a worker for taking qualifying leave.

Protected Activities

An employer may not terminate or otherwise take adverse action against workers who engage in activities protected by law. According to the Department of Labor (DOL), there are three categories of such protected activities:

1. Reporting Unlawful or Potentially Unlawful Behavior

When an employee reports their employer's potentially illegal behavior, they are protected against retaliation and wrongful termination. In assessing an employee's protections, courts use what is referred to as an "objective" standard.

Using this standard, a court assesses whether an employee had a "reasonable" belief that their employer violated the law. Under this standard, the employee's claim must also have been made in "good faith." It's not necessary that a violation of law actually occurred. As long as the employee believed in "good faith" that such a violation occurred, that's all that matters when it comes to whether reporting of this kind is protected.

It's also important to note that reports to federal or state enforcement agencies, as well as reporting problems internally within a company, are protected, as well. For example, an employee who reports potential work safety violations to the Occupational Safety and Health Administration (OSHA) would be protected from retaliatory firing, as would an employee who reports sexual harassment or racial discrimination to their company's human resources department.

2. Asserting Your Rights as an Employee

The DOL lists the following as examples of workers' rights, which are also recognized as such by the International Labor Organization (ILO):

• Freedom of association
• Freedom to engage in collective bargaining
• Non-discriminatory workplaces
• Abolition of child labor
• Prohibitions on forced labor or compulsory work

However, this list is not exhaustive, and the DOL also notes that, "There is no single definition or definitive list of workers' rights." Whatever the case may be, the Department of Labor claims that workers are protected against retaliation for engaging in activities where they assert their rights as workers.

3. Participating in an Investigation

Employers cannot retaliate against employees who participate in an investigation, lawsuit, or hearing regarding the potentially illegal practices of their employer. For example, an employee who is subpoenaed to testify in a wrongful termination case may not be fired for doing so. Similarly, a worker who provides information to federal investigators researching wage and hour violations may not be retaliated against.

Proving Retaliation and Wrongful Termination

In proving a claim of retaliation and wrongful termination, it's important to consider a variety of things. For example, if you are still employed, you should file a complaint through your human resources department or any other group or person within your company that handles such concerns. In a necessary way, this will put your company on notice.

It's equally important to know that a successful claim is usually characterized by proving that you:

1. Witnessed or were a victim of some form of harassment or discrimination,
2. Participated in a protected activity following your employer's illegal activity, and
3. Were punished in some way because you participated in the protected activity.

Demonstrating the connection between an employee's protected activity and their termination is often the most difficult part of such claims. The law allows this connection to be established by both direct and circumstantial evidence.

Direct evidence includes written or verbal statements that an employee was fired for engaging in a protected activity. Circumstantial evidence is based on an inference that an employee's firing or punishment was a result of his or her participation in a protected activity.

If you are going to make a claim for retaliation, make sure you have an open and honest conversation with your attorney about any performance reviews that you may have received prior to the incident in which you feel you were unfairly judged or discriminated against. It might prove useful as your claim progresses, and performance reviews are often some of the most useful pieces of evidence in any retaliation claim.

Regardless of whether your reviews indicate prejudice, it can always help to compare an employer's claim concerning why they fired you with what is reflected in your performance reviews. Perhaps, for example, your reviews indicate a history of positive performance, while your employer alleges otherwise in a response to your claim. If you have a record of excellent performance and if your employer is alleging otherwise in their response to your claim, your positive reviews could cast doubt on any notion that you were fired for underperformance.

In another example, consider an employee who is up for a promotion but is suddenly taken out of the running shortly after they report safety violations. This employee may have circumstantial evidence of retaliation if they can show that there was no other reason for them to be punished.

Employers often counter claims of retaliation by attempting to demonstrate valid reasons for an employee's termination or punishment or that the employee was "at will" and could be fired for any reason. Gathering as much evidence as possible can be helpful in countering such defenses that your employer might try to use.

Learn More About Retaliation and Wrongful Termination: Call a Lawyer

An attorney can help you understand how the law applies to your circumstances and help you decide what options to pursue moving forward. If you've been wrongfully terminated, you may be entitled to back pay, reinstatement, and even an award of punitive damages. Contact an employment law attorney today to learn how they can help you achieve a fair outcome.