Overview: When used in an employment context, the term retaliation refers to taking a vengeful, adverse action against an individual. Advanced levels of employee discipline, such as suspension and termination, may trigger retaliation claims. Employers should provide training to supervisors and managers to determine how to guard against employee retaliation, and how to minimize employer liability with respect to agency charges or court claims.
A number of federal and state laws and regulations contain antiretaliation provisions, which are among the most heavily mediated and litigated employee protections. In fact, the Equal Employment Opportunity Commission (EEOC) receives tens of thousands of retaliation-based complaints each year. Other major federal employment laws containing antiretaliation provisions include the Fair Labor Standards Act (FLSA), the Employee Retirement Income Security Act (ERISA) and the Family and Medical Leave Act (FMLA).
The Sarbanes-Oxley Act of 2002 (SOX), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), includes penalties for retaliating against whistleblowers. These whistleblower provisions, along with many other statutory provisions, are enforced by the Occupational Safety and Health Administration's Office of the Whistleblower.
Trends: The Supreme Court has adopted a strict standard of proof for retaliation claims under Title VII of the Civil Rights Act of 1964. In University of Texas Southwestern Medical Center v. Naiel Nassar, MD, the Court adopted a standard that requires employees to show that "but for" the employer's improper motive, the adverse employment action would not have been taken. This contrasts with the "mixed motive" standard of proof, where an employee must show that the employer's improper motive was a "motivating factor," but not the primary factor, in the decision. In addition, the EEOC has proposed draft enforcement guidance that would strengthen the EEOC's ability to enforce retaliation protections and that would bring its guidance in line with recent Supreme Court cases.
Author: Marta Moakley, JD, Legal Editor
In-depth review of the spectrum of New York employment law requirements HR must follow with respect to performance appraisals.
The 3rd Circuit Court of Appeals has affirmed the dismissal of a whistleblower retaliation claim against Tyco Electronics Corporation (Tyco) based on the Sarbanes-Oxley Act's anti-retaliation provisions.
A federal jury in New Hampshire has awarded more than $31 million in damages to a former Wal-Mart pharmacist who claims the nation's largest retailer fired her for raising safety concerns about how it filled prescriptions.
Updated to reflect the Seattle Wage Theft Prevention and Harmonization Ordinance, which enhances retaliation protections and remedies. See Seattle Wage Theft Prevention and Harmonization Ordinance.
On December 17, 2015, Seattle Mayor Edward B. Murray signed the Wage Theft Prevention and Harmonization Ordinance amending the municipality's current labor laws addressing paid sick and safe time, job assistance, wage theft and minimum wage. Several sections of the Employment Law Manual, three Quick Reference charts, and three poster landing pages have been updated. Additionally, two new landing pages and four new Legal Timetable entries have been added.
Updated to reflect the New York Women's Equality Act, including enhanced sexual harassment protections. See New York Enacts Women's Equality Act.
This section helps HR professionals and employers implement effective and compliant discipline policies and practices. Special attention is paid to special discipline situations, including absenteeism, theft, substance abuse and whistleblowing.
In-depth review of the spectrum of New Jersey employment law requirements HR must follow with respect to Employee Discipline
In-depth review of the spectrum of California employment law requirements HR must follow with respect to employee discipline.
In-depth review of the spectrum of Maine employment law requirements HR must follow with respect to employee discipline.
HR guidance on the legal risks of retaliation in the workplace.