Retaliation FAQs

Retaliation in the workplace is an unfortunate reality for far too many employees. Most employers have specific policies against it. Even if an employer does not, state and federal laws clearly identify it as unlawful.

If you feel that you are being retaliated against in the workplace use the Q&A list below to gain a better understanding of your rights and get answers to the most commonly asked questions.

1. What is retaliation in the workplace?
2. How do I prove I have been retaliated against?
3. What should I do if I think I am being retaliated against?
4. What are the most common causes of retaliation?
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?
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?
7. Are retaliation and whistleblowing considered the same thing?
8. What should I expect to receive in damages awarded if I win a retaliation case?

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.
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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.

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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.
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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
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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.

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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.

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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.

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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.

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If you believe you have a retaliation case, you need legal counsel that is both thorough and effective. Contact us to schedule a free initial consultation or call us at 603.570.4837.