Employees have very specific legal rights when they’re at work, and they also have the right to ensure that their primary rights are upheld. This can sometimes mean having to speak up when something is amiss.
When an employee participates in any legally protected activity, an employer can’t – lawfully – retaliate against them. Understanding what constitutes a protected activity and what actions can considered be retaliation by an employer is important, as a result.
What is a protected activity?
There are many different types of legally protected activities. Some have to do with safety on the jobsite and others ensure that workers are able to access certain benefits. For example, an employee can make a complaint about discrimination, file a report about a safety violation, or take leave under the Family and Medical Leave Act.
Protected activities also extend to witnesses and people who are participating in investigations into complaints or reports. This means that someone who is asked to make a statement about a sexual harassment claim would have just as much protection as the person who filed the initial report.
What is retaliation?
Retaliation is any negative employment action that stems directly from the protected activity. It can include obvious actions, such as termination or demotion, but it can also include more covert actions like failing to tell an individual about a required meeting or refusing access to benefits they’re due. The key is that the negative employment action must be a result of the protected activity at issue.
It’s possible for a person who engages in a protected activity to lawfully face discipline for other reasons, but the discipline must be the same as what any other person who did the same thing would face. For example, an employee can still face termination for stealing from the cash register as long as that’s what anyone who steals from the register would face.
Retaliation claims are often difficult to handle. Employees who are facing this situation should work with a legal professional who can assist them in determining how to proceed with their case accordingly.