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. Although these particular statutes are primarily aimed at public companies, the antiretaliation provisions cover all employers.
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 Whistleblower Protection Program, administered by the Occupational Safety and Health Administration (OSHA), is now accepting whistleblower complaints filed online. Employees, union representatives and employers should take note of the added convenience to OSHA's filing procedures.
As mandated by the Department of Workforce Development, Equal Rights Division, all employers that are health care providers or who own or manage a health care facility must post the Retaliation Protection for Health Care Workers in Wisconsin poster.
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