How To Identify Retaliation In The Workplace

By Douglas Lipsky

Employees in New York and around the country have rights, including the right to complain about discrimination, harassment, and other misconduct. Employees also have a right to take legal action to enforce their rights through an administrative proceeding or civil lawsuit. And employers cannot retaliate against employees for exercising their legal rights.

What Is Workplace Retaliation?

Retaliation in the workplace occurs when an employer takes adverse action against an employee for engaging in or exercising a legally protected right. Activities that can lead to retaliation include:

  • Refusing to take part in illegal conduct at your employer’s direction or request 
  • Complaining to your employer about workplace discrimination or harassment
  • Requesting taking a leave of absence under the Family and Medical Leave Act (FMLA)
  • Filing a complaint against your employer with the federal Equal Employment Opportunity Commission (EEOC) or the New York State Division of Human Rights
  • Blowing the whistle about your employer’s illegal activities or safety violations
  • Filing for workers’ compensation benefits
  • Participating as a witness in a legal case against your employer

If you face adverse action, harassment, or other act of retribution after taking any of these actions, consult an experienced workplace retaliation attorney about the next steps.

Amendments to New York Labor Law Provide Greater Protections Against Retaliation

Recent amendments to Section 740 of the New York Labor Law (NYLL) provide employees with enhanced protection against whistleblower retaliation by expanding the definitions of protected activity and covered employees.

Previously, Section 740 protected employees who reported an actual violation of the law that posed a threat to public health or safety or concerned healthcare fraud.  Under the amended law, employees need only show they “reasonably believe” a violation occurred. Also, the alleged illegal activity need not threaten public health or safety. 

So, employees can also report violations of applicable anti-discrimination and anti-harassment laws and receive whistleblower protection. The amended NYLL also expands the definition of “employee” beyond current employees to include former employees and current and former independent contractors. Finally, plaintiffs are now entitled to a jury trial to recover damages.

Signs of Employment Retaliation

Retaliation can take many forms. Any adverse action taken by an employer that is severe enough to deter a reasonable employee from exercising their legal rights may support a legal claim of retaliation. Workplace retaliation may involve:

  • Demotion – Losing a job title, responsibilities, or privileges associated with your position or being reassigned to a lower-ranking position
  • Termination – Being let go from your position
  • Salary reduction – Receiving a cut in pay
  • Loss of hours – Losing regularly scheduled hours
  • Exclusion – Being intentionally kept out of staff meetings, denied training or other benefits available to employees
  • Reassignment – Being reassigned duties or rescheduled in a way that causes undue hardship

Other common retaliatory tactics include sudden unwarranted negative performance reviews,  warnings, discipline, or harassment.

How To Prove Retaliation In The Workplace

To win a retaliation lawsuit, you must be able to prove the following:

  • You engaged in a protected activity
  • Your employer took adverse action against you
  • Your employer took action against you because of your activity
  • You suffered actual damages (e.g., lost wages, reputational harm)

After engaging in a protected activity such as filing a complaint or whistleblowing, keep a record of important events, such as a poor performance review or disciplinary actions, as this will serve as valuable evidence in your retaliation claim. It is also wise to consult an experienced employment law attorney. A capable lawyer will:

  • Conduct an investigation
  • Identify and interview witnesses
  • Collect evidence, including personnel records, performance reviews, and electronic communications 
  • Handle all communications with your employer, HR personnel, and their attorneys

Negotiated settlements are the best way to resolve workplace retaliation claims, but employment litigation may be necessary to achieve the desired outcome. If you have suffered workplace retaliation, talk to an experienced employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.