Unlawful retaliation in the workplace occurs when an employer takes an adverse action against an employee who engages in a protected activity, such as expressing concern(s) about discrimination or sexual harassment at work. Adverse actions may include, but are not limited to: termination, demotion, poor performance reviews, unjustified discipline, salary reduction, changes in shifts and/or job responsibilities, and increased scrutiny. Although it is illegal for an employer to retaliate against an employee because he or she expresses concerns about discrimination, harassment, unpaid wages, overtime, or earned tips, unfortunately it does occur. Therefore, it is important for employees to know their rights, and what to do if it they are retaliated against.
To establish a prima facie case of retaliation, an employee must participate in a protected activity (reporting unlawful workplace conduct) of which the employer was aware, and that he or she suffered an adverse employment action because of the protected activity. The best way for an employee to establish that he or she expressed concern(s) of discrimination in the workplace (or other unlawful practices in the workplace) is to keep contemporaneous and separate documentation of his or her complaints. Put simply, if an employee complains in writing, through an email or a written letter, that employee should retain a copy of that complaint for his or her own records. Email is the one of the best ways to document a concern because it reflects the date and time of the message and to whom it was sent. Furthermore, if the employee attaches a “Read Receipt” request, this may also show that the recipient read the email. This may defeat the potential defense that the employer never received the email.
It’s important to recognize unlawful workplace retaliation and to understand what to do if it occurs. While the most recognizable form of retaliation is termination, it can also take less obvious forms, such as increased scrutiny, discipline, or undesirable changes in shifts and/or job responsibilities, etc. If an employee notices such changes after reporting his or her concerns of discrimination, he or she should document these adverse actions. Retaliation may become a separate but related claim to adverse employment actions and should be treated in a similar manner in terms of documentation.
Employees should not let the fear of retaliation stop them from bringing forth unlawful acts in the workplace, such as discrimination and sexual harassment. Instead, it is important that employees are educated on their rights and know what to do in the event they are retaliated against so they can protect their careers.
If you have been harassed or discriminated against at work, or are missing wages, overtime pay, or earned tips, it’s important that you express your concerns both verbally and in documentation to your employer or Human Resource representative. Your employer may remedy the issue. However, if they fail to do so, seek experienced legal counsel.
Our experienced New York Employment Attorneys have had significant success representing clients whose employers have engaged in unlawful workplace activity. If you are a victim of discrimination, harassment, unpaid wages, overtime pay, earned tips, or retaliation for reporting concerns of unlawful work conduct, you may have a significant legal claim against your employer. We’re available 24/7 to take your call and offer free, confidential case evaluations. You may reach us via email or by phone at (212) 661-4370 or (516) 873-9550. Don’t wait. Your case may be time sensitive.