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. Although this employer-friendly, strict standard of proof is applicable in Title VII retaliation cases, many courts continue to apply employee-friendly, relaxed standards of proof in whistleblower retaliation cases.
Author: Marta Moakley, JD, Legal Editor
The Supreme Court has ruled that employees of private companies that contract with public companies are covered by the whistleblower protections found in the Sarbanes-Oxley Act of 2002 (SOX). The Court's ruling in Lawson v. FMR, LLC preserves the relatively broad interpretation of SOX's whistleblower provisions favored by the US Department of Labor (DOL).
A 6th Circuit Court of Appeals case (Deleon v. Kalamazoo County Road Commission) suggests that a lateral transfer, even if initially requested by an employee, may be considered an adverse employment action under federal antidiscrimination laws when the terms and conditions of the transfer are inferior to what the employee originally sought.
As mandated by the Hawaii Department of Labor and Industrial relations, Hawaii employers must post the Hawaii Whistleblower Protection Law Poster.
The Equal Employment Opportunity Commission has entered into a settlement with Wal-Mart Associates, Inc., and Wal-Mart Stores East, Inc., L.P., d/b/a Wal-Mart stores in Albuquerque, of a claim that Wal-Mart refused to hire the son and daughter of a Wal-Mart employee because of a sex discrimination charge she had filed earlier against the retailer.
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 Kentucky employment law requirements HR must follow with respect to employee communications.
As mandated by the Maine Department of Labor and the Maine Human Rights Commission, all Maine employers must post the Maine Whistleblower's Protection Act Poster.
As mandated by the Michigan Department of Licensing and Regulatory Affairs and the Michigan Occupational Safety and Health Administration (MIOSHA), all Michigan employers must post the Michigan Whistleblowers' Protection Act Poster.
As mandated by the New Jersey Department of Labor and Workforce Development, every employer covered by the Conscientious Employee Protection Act must post the New Jersey Conscientious Employee Protection Act Poster.
As mandated by the California Department of Industrial Relations, every employer that is subject to an order of the Industrial Welfare Commission must post the California Whistleblower Protections Poster.
HR guidance on the legal risks of retaliation in the workplace.