Retaliation at work
Retaliation at work happens. Even though you are an at-will employee, if your employer takes adverse action against you for complaining about circumstances/events that occur at work involving sexual harassment, discrimination or any other illegal employer actions, you may have a claim for retaliation.
Compassionate and Experienced Employment Law Representation
At Sherman Law, PLLC, we are here to represent your employment law rights in an effective and compassionate manner. Portsmouth retaliation lawyer John P. Shermanhas many years of experience as a business and employment law attorney and is extremely knowledgeable in wrongful termination and retaliation laws. He can discuss the specific facts surrounding your retaliation case and how he can help in a free initial consultation.
Obtain an attorney immediately as there is a short statute of limitations. Call 603.570.4837. Contact us today to talk with our Portsmouth retaliation attorney.
New Hampshire Retaliation Claims
Even if a claim for discrimination, sexual harassment or violation of public policy is not found to be legitimate, retaliation for making that claim is still illegal. However, you must act quickly as there is a short statute of limitations of 180 days. Otherwise you may be barred from litigating in court.
The significance with retaliation is that there has to have been some material adverse action against the employee by the employer. If the employer claims some legitimate business reason as pretext for the retaliatory action, the employee has the burden to prove the pretext. Circumstantial evidence must be identified to rebut that the adverse actions were not for legitimate business reasons.
A material adverse action does not always have to be wrongful termination or discharge and can involve:
- Constructive discharge
- Whistleblower/qui tam claim
- Reduced salary or pay
- Being passed up for promotion
- Change that materially diminishes responsibilities
1. What is retaliation in the workplace?
The law protects an employee who exercises his or her legal rights in the work place such as participating in a sexual harassment investigation or reporting potential discrimination from then being subjected to an adverse employment action in retaliation for exercising his or her rights. It is sometimes subtle, like the change of a job title or position or wages, and is sometimes overt, such as termination of employment. The questions to ask are whether the employee engaged in “protected activity” and whether there was an “adverse employment action” because of the protected activity. Examples of adverse employment actions include, but are not limited to, the following:
- employment actions such as termination, refusal to hire, and denial of promotion,
- other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and
- any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.
2. How do I prove I have been retaliated against?
Proving retaliation is a fact-based inquiry. Rarely, if ever, is there direct evidence proving it. We, therefore, usually consider a lot of different facts and events and assess whether they are related. We look at things like evidence that an employee engaged in some legally protected activity or right and then, after, that suffered some adverse action at work. These things may be reflected in emails, text messages, letters, job reviews, chronologies, and any other evidence that may show what happened. By following the guidance in question 3 you can adequately prepare yourself.
3. What should I do if I think I am being retaliated against?
- Understand your company policy. This is very important because it will lay out the steps the Employer has identified for reporting retaliation. If possible and practicable following the policies outlined by your company may be advisable. Because this is not always possible, therefore, you should consider consulting an attorney before taking such steps. Typically, company policies recommend that you report retaliation to a manager, a manager’s manager, an employee hotline, HR, or employee relations specialists. How you make this report, verbally or in writing, is an important consideration and something you should consider reviewing with counsel.
- Call a lawyer. At Sherman Law we provide free consultations. We are happy to talk with clients to assess if retaliation has occurred and address the steps to follow. It is never too early to contact a lawyer if you think you are facing workplace retaliation.
- Make sure you are keeping clear documentation and that any documentation relevant to the situation is preserved. Keeping track of what occurred, what was reported, to whom, and when is usually helpful.
- Keep Your Eyes and Ears Open. Stay alert to any changes in your employment following any event in which you have exercised your legal rights or participated in a company investigation. Changes may be subtle and include things such as a change in your reporting structure, your job title, your responsibilities, who you are supervising, wages, access, demotions, employee benefit change etc. These are clear signs and evidence. You also may find that you are suddenly receiving a Performance Improvement Plan (frequently referred to as a PIP) when you never before were subjected to employee discipline. If this happens, and it is unexpected, it should be a sign that something may be occurring with your employment. Let your lawyer know immediately or if you haven’t hired a lawyer yet, set up a consult.
4. What are the most common causes of retaliation?
Retaliation can occur for any number of reasons. We see it, frequently, following an instance in which an employee reports some violation of company policy, sexual harassment, or is just an individual objecting to some form of discrimination. The most common cases of retaliation we see at Sherman Law are:
- Employee alleging discrimination
- Employee alleging harassment
- Employee threatening to file a charge of discrimination or harassment
- Employees picketing in opposition to discrimination
5. I’m being asked by HR to act as a witness and describe something I observed in the workplace but I am worried about retaliation if I do. I don’t want to lose my job. Should I talk to HR?
This is an individual decision. Whatever you decide, it is important that your conduct and demeanor at work remain professional. It also is important that you know your legal rights. Both state and federal law—and most company policies—protect employees who participate in an investigation that HR is conducting from then being subjected to retaliation. What this means is that you have the legal right to participate, for example, as a witness at a hearing before the New Hampshire Human Rights Commission or in Court about what you observed at work and to be protected against retaliation because you testified. If, for example, you observed a supervisor or manager subjecting a co-employee to sexual harassment and are asked to testify or provide information about it, you have the legal right to do so. If, later, you are subjected to any adverse employment action because of your testimony such as a reduction in hours, changed responsibilities, a bad job review, or a Performance Improvement Plan (PIP), you may have a potential retaliation claim. If, therefore, you participate in a Company investigation or respond to an inquiry from HR to provide information and are subsequently retaliated against in the workplace, there is a strong possibility that you have a retaliation claim. We recommend that you contact legal counsel immediately to learn about your rights.
6. Is an employer potentially liable if a co-employee, manager, or supervisor retaliates against me after I reported something about this person to my employer?
Potentially, yes. The answer to this question depends upon what the employer knew and when it knew it. It also depends upon the sufficiency of the employer’s policies. Another consideration is the training the employer provided to this manager or supervisor against retaliation. It also is relevant how or even whether the Employer did anything to prevent this individual from retaliating against you. If anyone retaliates against you, therefore, it is important that you consult an attorney because you have the right not to be subjected to retaliation in workplace.
7. Are retaliation and whistleblowing considered the same thing?
No, while they are very similar and often times connected they are two different actions. Whistleblowing is when an employee reports that an employer is potentially engaging in either illegal or unlawful activity. Retaliation occurs when, after reporting an employer’s conduct, an employee is subjected to an adverse employment action because of his report regarding the employer’s conduct.
8. What should I expect to receive in damages awarded if I win a retaliation case?
Every case is different. Verdicts and settlements vary case-by-case, by county, and by state. Generally, however, there is no statutory cap on the damages a jury may award. This differs from similar cases like disability discrimination where damages are capped at a certain amount.