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Employee retaliation may be insidious! Part 2
November 08, 2010

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Employee Rights News You Can Use

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Date November 7, 2010

Issue #20

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Article

Employee retaliation may be insidious! Part 2

Last month I talked about the 1st area involving workplace retaliation, "protected activity". Now let's focus on "adverse employment action" and "casual connection". When employees complain about a protected activity such as talking to an employee rights attorney, managers will typically want "revenge".


Basic human nature says, "I must defend myself". However, if discrimination or harassment has taken place there is no defense. Given the disturbing growth in retaliation claims employers are not training supervisors and managers to respect the rights of employees.


#2

Adverse Employment Action

Different Courts have given different rulings on what rises to the level of retaliation. However, any action an employer takes that "lightens" our wallets" is considered workplace retaliation! Obviously, getting fired is the most obvious adverse employment action that takes away money. Here are some other negative employment actions bosses use to cost us money;

  • refuse to hire
  • denial of promotion
  • removed or reduced benefits
  • denial of overtime pay
  • denial of employee awards

The following are other adverse employment actions some of which can lead to a "lighter paycheck"!

  • transfer or denial of transfer to another department
  • unfair, unjust job evaluations
  • change in actual business location
  • change in hours of work
  • threats or bullying
  • false reprimands
  • suspension

Career seekers and employees here is a HUGE TIP to be aware of that any employer may use against you. A lot of businesses and organizations will assume what your financial status is. For example, you accept employment with XYZ Corp. at a salary of $30,000. Based on your resume/application your boss assumes your financial worth. A lot of employers have thousands of dollars budgeted for their legal departments as a hedge against potential lawsuits.


How many job seekers and employees also have the economic wherewithal to sustain a long drawn out discrimination or harassment lawsuit. That's why we don't see any "Let me defend your employee rights" commercials" from lawyers. But, we are constantly bombarded with "personal injury", "workers compensation" or "social security disability" television and radio commercials. Why? Because those areas of law are where the MONEY is!


Now, it's true that employees DO WIN employment suits with significant monetary awards. However, most genuine discrimination cases never see the light of day. Unfortunately, employee rights attorneys are in the minority. Why? (Sigh...) that's a newsletter to come! The bottomline is many employers count on us not having the financial resources to pay lawyers to sue them. That's one reason class action or multiple party lawsuits are far more successful than single individual lawsuits. That's also another reason I preach LEARN YOUR BASIC EMPLOYEE RIGHTS!


Courts and the EEOC call activities that are "reasonably likely" to deter, hinder or intimidate charging parties (employees) from engaging in protected activity. The following are some business activities determined NOT to be adverse employment action;

  • rarely complaining about protected activity
  • not clearly defining protect activity complaint
  • complaining about unwanted job duties
  • boss disputing or seeking to deny you unemployment
  • compensation

#3

Casual Connection

Now we come to the last component of retaliation in the workplace, "casual connection". That means we as career seekers and employees must prove the following;

  • (1)the employer punished us for engaging in protected activity
  • (2)my protected activity happened before the retaliation (adverse action)
  • (3)the boss knew about my protected activity

Here's a real world example of casual connection from my own employment experience. After successfully proving my termination was unjustified I was reinstated to my job by a unanimous 3-0 vote in the appeal board hearing. However, the employer sought to treat my reinstatement as a "rehire" which would've drastically negatively affected my compensation, leave and other benefits. Then after being returned to my job, came a series of retaliatory actions, including;

  • denial of training
  • promotional opportunities
  • insults
  • attempted violations of my FLSA,ADA and Constitutional Rights!

Casual connection may be proven by interoffice memos, emails, comments made to co-workers by management even negative comments made to customers or vendors. Here's another BIG TIP! When my employer sought to violate my (ADA) Americans with Disabilities Act rights I received a interoffice memo from HR directing me to take a "fitness for duty" medical exam.


However, the way the memo was worded clearly violated ADA guidelines. I corresponded back by using email that required a response stating they were operating outside the scope of ADA. Management assuming I didn't know my ADA rights proceeded to provide me with a nice paper trail of several emails seeking to intimidate me by ignoring ADA provisions. After consulting the legal department they quickly backed off.


I quickly printed all the back and forth emails which provided me a nice paper trail to show the "bad faith" intent and retaliation by my employer. Another example of casual connection might be me giving testimony in an internal sexual harassment complaint filed by a female co-worker. I happened to overhear the "unwanted and offensive" comments made to her by a manager. Two weeks after the hearing I receive a demotion.


The bottomline for employees is to understand that workplace retaliation for "daring" to exercise and seek to protect your rights is growing at an alarming rate. The ever changing nature of the workplace means this problem won't be going away any time soon. Learn more about workplace retaliation here;

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More Blessings To Come!

Yancey

Employee Rights Educator, Coach, Trainer, Advocate, Webmaster
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