Know Your Rights: Retaliation At Work

Have you ever felt that something changed at work especially after speaking out about something you believed is wrong or when asserting your legal rights? Maybe a benefit you previously had is suddenly taken away, or you are being excluded from meetings or you received a discipline shortly after you spoke out. If this has happened, you may have experienced retaliation. Some retaliation can be very explicit and easy to spot, but other times it can also be subtle and more insidious.

In the work world, when we are inside the walls of our companies and workplace, we may forget that the employee handbook or policies are not the laws of the land. Therefore, it’s pertinent that employees educate themselves on what is illegal in the workplace to understand when they are being subject to illegal retaliation. Employers and managers may think their actions are the norm but that norm is still subject to laws that prohibit retaliation.

This piece is designed to educate employees on what retaliation is, what it looks like, what evidence they need to collect to prove it and how to pursue a retaliation claim. The end of the article includes an appendix on various federal, Connecticut and New York laws that prohibit retaliation.

Retaliation is when an employer, through a manager, supervisor, administrator, directly fires an employee or takes any other type of adverse action against an employee for engaging in protected activity. An adverse action is an action which would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other protected activity.

The reason why employers may retaliate against an employee can be complicated and nuanced, as most human behavior is. Our workplaces are filled with egos, power dynamics, pressures for companies to perform, pressures to please clientele, shareholders or boards, expectations of productivity and revenue and countless other factors. Lawyers, lawmakers and commentators may try to reduce workplace disputes to clear rules, but human behavior, workplace dynamics and business pressures are often more complicated.

The EEOC has commented on this topic, stating that: “the act of retaliation is equivalent to revenge where a person perceives unfair treatment and attempts to restore equilibrium by taking the matter into his or her own hands. Research has consistently demonstrated that the desire for retaliation is common upon experiencing an offensive interpersonal encounter, particularly if the encounter threatens one’s self-image.” Furthermore, the EEOC has stated “if those accused sincerely believe that they have done nothing wrong, or if they believe that their offensive behavior was somehow justified, they may begin to ruminate and desire retaliation.”

Even given the sociological explanation for retaliation, it doesn’t change the law. Thankfully, there are laws that protect employees from retaliation and explicitly lay out prohibition of retaliation for protected activities. Retaliation serves to chill employees’ complaints or protected activities, which is why laws against retaliation exist. Unfortunately, retaliation happens far too often and it has the desired effect. It is extremely inconvenient for your employer to hear, answer or respond to a complaint, accommodation or other protected activity. The protected activity may disrupt productivity, sales, revenue or simply just tick off your employer. But inconvenience is not enough to circumvent the law. At Carey & Associates, we hope to empower employees by informing them of their rights and to change the world of work for the better.

It’s likely you have stumbled on this article because you feel something off at work and suspect you may be retaliated against. In this case, you should immediately do the following:

Preserve a personal timeline
Check applicable deadlines quickly
Submit Written Complaints to HR or a Supervisor
Seek legal advice before filing, recording conversations or signing an agreement

Protected Activities

Most prohibitions on retaliation protect employees who engage in a protected activity. Therefore, employees need to understand what protected activities are and keep watch for illegal retaliation for those activities.

Protected Activities include complaints about workplace discrimination, a discriminatory workplace culture, violations of laws intended to protect health and safety, acting as a whistleblower and requesting accommodations for a disability.

The EEOC classifies protected activities as “participation” and “opposition.”

Participation means taking a part in any employment discrimination proceeding – filing an EEOC charge, serving as a witness, providing evidence or cooperating with investigations. Employes can think of this as taking an active role in a discrimination proceeding. This protection applies regardless of whether the underlying discrimination claim succeeds.

Opposition protects employees’ rights to push back on what they believe is illegal conduct. This can include complaining to HR about harassment, refusing to follow discriminatory orders or supporting a co-worker’s discrimination complaint. The employee need not be correct about their belief, but they do need to have a reasonable, good-faith belief that something illegal occurred. This is the pushback to conduct the employee does not agree with and often comes about when the employee is speaking out against something.

Examples of Protected Activities

Reporting discrimination
Reporting harassment
Participating in a workplace investigation
Complaining about wage violations
Requesting medical or family leave
Requesting disability accommodations
Reporting or refusing to work in unsafe working conditions
Cooperating with government agencies
Reporting that your employer is doing something illegal
Submitting a formal complaint with a state or federal agency

What Does Retaliation Look Like?

Retaliation can be subtle or blatant. It’s also important to note that retaliation does not have to happen from one person — multiple people at work can retaliate against you. If something feels off or if it makes you feel targeted, you should consider if you are being retaliated against and record the instance.

Some examples of retaliation are:

Receiving unfair criticism or being embarrassed in front of other employees
Being denied certain workplace benefits like training, travel, or even parking spots
Being placed on a performance improvement plan or subjected to excessive “coaching” or discipline
Being subject to schedule changes or reduced hours
Losing work duties or projects
Receiving negative performance reviews that conflict with previous reviews
Being assigned work assignments or goals that are nearly impossible to meet
Being blacklisted an employee and impeding their ability to gain future employment
Reporting or threatening to report an employee to the police or immigration authorities
Being excluded from meetings, projects or even communications
Being isolated

While employers may attempt to frame these actions as performance based — timing, context and patterns often expose the retaliation for what it is. If you can identify a protected activity that you engaged in before you experienced the action, you may be a victim of retaliation.

What To Do If You Believe You Are Being Retaliated Against?

Document Everything. Every email, text message or even verbal conversation should be saved or recorded in some manner. Note that company equipment should not be used to save documents. Forward relevant documents to yourself, if permitted by company policy or use another device to take pictures or screenshots. You should always assume that your employer monitors your work equipment.
Formally Submit a Complaint to HR or other supervisor and specifically state that you feel you are being retaliated against for your protected activity. Complaints to HR can often put employers on notice and help delay termination, create a formal record and even assist in severance negotiations.
Consider Hiring an Attorney. Employment attorneys can help you navigate complaint processes, weigh the strengths and weaknesses of your case and begin severance negotiations.

How To Prove a Retaliation Claim

Elements may vary by statute, but a successful retaliation claim commonly includes that:

The employee engaged in a protected activity about the workplace, including issues regarding discrimination, culture, public health and safety, or compliance with federal and state laws;
The employee was subject to some form of adverse workplace consequences; and
The adverse employment action was caused by the protected activity.

Timing can be a strong indicator of retaliation. If an employee engaged in a protected activity and then very soon after started experiencing adverse effects, this is strong evidence that retaliation occurred. However, retaliation can occur months or even years later if there is other evidence to support retaliatory motive.

Helpful evidence can include any sort of criticism the employee received for raising a complaint, a negative shift in performance reviews after the complaint, sudden discipline for activity that previously went unpunished, false or shifting explanations for the adverse action and disparate treatment compared to employees who did not complain.

Where to File a Retaliation Complaint:

EEOC: For many discrimination retaliation claims in Connecticut and New York, an EEOC charge must generally be filed within 300 days of the retaliatory act. Different deadlines may apply depending on the claim and location. The EEOC will then investigate and may pursue your claim or issue a “right to sue” letter, which allows you to file in court.
1. State level departments:
  1. In New York, an employee may file a complaint for retaliation with the New York State Division of Human Rights (“NYSDHR”). You have three years to file a complaint with the NYSDHR.
  1. In New York City, an employee may also file with the New York City Commission on Human Rights (“NYCCHR”). New York City claims may also be subject to a three year limitations period.
  1. In Connecticut, an employee can file with the Connecticut Commission on Human Rights and Opportunities (“CHRO”). There is a 300 day deadline form the date of the last retaliatory act to file.
1. State Court in NY: In New York, an employee can also file a lawsuit in state court within 3 years of the retaliation.

Remedies Available:

So, what does the employee get after proving retaliation? Depending on the laws involved and the facts of the case, an employee who is retaliated against may receive:

Back Pay in the form of wages, bonuses, commissions, or benefits
Front Pay to compensate you for future lost earnings until you can be placed in appropriate employment
Out of Pocket Expenses including medical expenses you incurred to address the impact that retaliation had on your health or job coaching to find another position
Pain and Suffering including emotional distress, humiliation, anxiety or other psychological harm caused by retaliation
Policy Changes and Corrective Action
Attorney Fees and Costs
Punitive Damages and Other Remedies

Conclusion

Retaliation is never as clear cut as the law will make it. That is why it is more important than ever for employees to understand what it looks like and what their rights are. The law is clear, though, that it is illegal to be retaliated against for protected activities. Complaining about discrimination, requesting accommodations, blowing the whistle on illegal activity or participating in an official investigation are all examples of protected activities. In a world where the balancing scales clearly favor employers, employees need to be empowered to recognize that there are laws and regulations that protect them from retaliation in the workplace and that they have a way forward to be remedied for this violation of the law.

If you suspect you are being retaliated against for a protected activity, keep a timeline and document everything. Consider speaking to an employment lawyer who can help you navigate responding to retaliation and filing a complaint. At Carey & Associates, we help employees fight back against adverse actions for engaging in protected activities to complain about discrimination. We are eager to help employees understand their rights and help protect themselves in the workplace. Our attorneys can help inform you if what you are experiencing is retaliation, file an administrative complaint, begin negotiations for severance or even file a federal or state case.

Statutes That Protect Employees From Retaliation

Federal Law

Family and Medical Leave Act (FMLA): FMLA regulations prohibit an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right. This can include discharge or other discrimination and does cover employees who oppose or complain about an unlawful practice. It also covers employees who has begun the process of filing a charge or proceeding under or related to the FMLA.
Occupational Safety and Health Activity (“OSHA”): Under OSHA, all employees are protected from retaliation from raising workplace health and safety concerns or for reporting work-related injuries and illnesses. Employees who have experienced this can file a whistleblower complaint.
Fair Labor Standards Act (“FLSA”): Under FLSA, employees who have filed a complaint, caused a complaint to be filed, testified in a FLSA proceeding or is going to serve on an industry committee are protected from being fired or discriminated against.
The Civil Rights Act of 1964: The Civil Rights Act of 1964 protects employees from being retaliated against for speaking up about their rights, including asserting their freedom from discrimination for a protected characteristic.
False Claims Act (“FCA”): The FCA protects employees from retaliation when they have blown the whistle on their company for defrauding the government. Whistleblowers are protected from termination, suspension, demotion, harassment or any other discrimination in the terms and conditions of employment. State FCA legislation may also mirror this protection.
Sarbanes Oxley Act (“SOX Act”): The SOX Act protects corporate whistleblowers that provide information about securities fraud, shareholder fraud, bank fraud, a violation of any SEC rule or regulation, mail fraud or wire fraud.
- Importantly, the whistleblower can only internally blow the whistle about something they “reasonably believe” constitutes some sort of wire fraud, mail fraud, bank fraud, securities fraud or any other violation of a Securities rule. and still be protected from protection.
- After a 2024 Supreme Court decision in Murray v. UBS Securities, LLC, et al., employees who bring a whistleblower claim against their employer under SOX are not required to prove that, in taking adverse action against them, their employer intended to retaliate against them due to their protected whistleblowing activity. The Court held that a plaintiff need only “show that the protected activity was a contributing factor in the unfavorable personnel action.”
The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) : The Dodd-Frank Act expanded the protections for whistleblowers and the prohibitions against retaliation.
- The SEC can take legal action against employers who have retaliated against whistleblowers who have reported conduct “in writing” to the Commission that the employee reasonably believed violated the federal securities laws.
- The Dodd-Frank Act also created a private right of action that allows whistleblowers to file a retaliation complaint in federal court, which greatly expanded employees’ rights.
- Rule 21F-17(a) also prohibits any person from taking any action to prevent a person from contacting the SEC directly to report a possible securities law violation.

Connecticut Law

Connecticut General Statutes sec. 31-51m (“Section 31-51m”): Section 31-51m prohibits employers from retaliating against whistleblowers or those who report illegal practices to a federal, state, or local agency.
Connecticut General Statutes sec 31-51q (“Section 31-51q”): Section 31-51q prohibits employers from retaliating against employees who engage in protected speech under the First Amendment to the U.S. Constitution or the free speech provisions of the Connecticut Constitution. For example, protected speech might include opposition to unlawful activities, speech on matters of public concern, and speech regarding serious wrongdoing, intentional dishonesty, deliberately unconstitutional conduct, or threats to public health and safety.
The Connecticut Fair Employment Practices Act (“CFEPA”): The CFEPA prohibits retaliation against an employee for actively opposing workplace discrimination based on age, sex, race, national origin, or sexual orientation or reporting it.

New York Law

New York Labor Law Section 215 (“NY Labor Law Section 215”): NY Labor Law Section 215 prohibits a private employer from discharging, penalizing, or retaliating in any manner against employees for engaging in legally protected activity.
New York Labor Law Section 740 (“NY Labor Law Section 740”): NY Labor Law Section 740 prohibits retaliatory action against employees, including public, private, independent contractors, and former employees who disclose or threaten to disclose employer conduct that the employee reasonably believes violates a law, rule, or regulation or that poses a substantial and specific danger to public health or safety.
New York Labor Law Section 741 (“NY Labor Law Section 741”): NY Labor Law Section 741 specifically protects employees in the healthcare field from retaliation for reporting improper quality of patient care or workplace safety or refuse to participate in activity that the employee believes to be improper quality of patient care or workplace safety.
New York Civil Service Law Section 75-B (“NY Civil Service Law Section 75-b”): NY Civil Service Law Section 75-b protects public employees by prohibiting public employers from retaliating against employees who report violations of law or improper governmental actions to an appropriate governmental authority.
New York State Human Rights Law (“NYSHRL”): NYSHRL prohibits employers from retaliating against employees who oppose unlawful discrimination or participate in the complaint process or request disability accommodations.
New York False Claims Act (“NY FCA”): The NY FCA prohibits employers from retaliating against whistleblowers because of lawful acts done by the employee, contractor, agent or associated others in furtherance of a False Claims Act case under New York Law.

New York City Law

New York City Human Rights Law (“NYCHRL”): The NYCHRL prohibits employers from retaliating against employees who engage in protected activities such as filing a complaint or participating in an investigation regarding discrimination, harassment or other violations of the NYCHRL, requesting reasonable accommodations for a disability or religious practice, exercising their rights under applicable labor laws such as those relating to wages, hours or collective bargaining, reporting violations of applicable laws or regulations to government authorities or opposing or disclosing discriminatory practices in the workplace.
New York City False Claims Act (“NYC FCA”): The NYC FCA prohibits employers from retaliating against employees for assisting in the investigation, initiation, testimony or assistance in connection with a False Claims Act case under New York City Law.

For more information about Retaliation at Work please contact our employment attorneys at Carey & Associates, P.C. at info@capclaw.com or call (203) 255-4150.