Q.: What protection do I have against retaliation by my employer?
A.: The law protects employees from retaliation by employers for asserting rights that are protected by law.  To win a retaliation claim, you must prove that:
• you engaged in protected conduct;
• your employer took an “adverse action” against you; and
• your employer took the adverse action because you engaged in protected conduct.

Q.: What conduct is “protected?”
A.: Laws prohibiting workplace discrimination and other workplace laws protect employees who assert the rights given to them by those laws.  

For example, the National Labor Relations Act (NLRA) protects employees who collectively complain about terms or conditions of their employment, whether or not they are members of a union. The Civil Rights Act of 1964 prohibits retaliation for actions taken to be free from employment discrimination.  The United States Constitution protects public employees from retaliation for exercising their right to free speech. 

Q.: What if I complain about discrimination and later discover I was mistaken.  Am I still protected from retaliation?
A.: Yes.  So long as you had a “good faith belief” that your employer’s conduct was unlawful when you complained, your employer cannot retaliate against you.

For example, a salaried employee may complain to the Department of Labor’s (DOL)Wage and Hour Division about her employer’s failure to pay her overtime.  If the DOL investigates and concludes that she is not entitled to overtime, she still has right to be free from reprisal for complaining. 

Q.: My job situation is shaky.  Should I complain about discrimination to keep from getting fired?
A.: No.  If you are actually complaining to avoid a discharge, you may not be able to prove a “good faith belief” in the complaint you make.  In addition, complaining about discrimination and other workplace right violations may irritate your employer, prompting retaliation, especially if the complaints are not well founded.

Q.: My friend feels she was the victim of gender-based pay discrimination at the place we both work, but she is afraid to complain.  If I complain for her, am I safe from retaliation?
A.: Maybe not.  Courts have struggled with the boundaries of protected conduct, especially with people who are helping others assert their workplace rights.  Recently, a federal appellate court held that an employee who provided harmful testimony against her employer in an EEOC investigation was not protected from retaliation, since the witness had not herself complained of discrimination.

Q.: I complained about a racist statement my boss made to me. The company reprimanded my boss, who has now written up bogus disciplinary warnings against me.  Can I sue for retaliation?
A.: Probably not, at least not yet.  You need a so-called “tangible, adverse employment action” (such as a loss of money) in order to file a suit.

4/16/2007

Law You Can Use  is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Akron attorney Neil E. Klingshirn of Fortney & Klingshirn.