ComplyRightComplyRightComplyRightComplyRight
  • RESOURCES
    • Knowledge Center
      • Tip Sheets
      • E-Guides
      • Podcasts
      • Infographics
      • Videos
    • Webinars
      • Upcoming
      • On Demand
    • Research and Trends
      • Compliance Survey
      • Trend Surveys
      • Minimum Wage Monitor
    • HR 101 Courses

      HR 101 Courses
      Learn More
  • TOPICS
    • I want to learn about:
      • Hiring an Employee
      • Creating Policies
      • Paying Employees
      • Discrimination & Harassment
    • Column 2
      • Employment Law
      • Labor Law Postings
      • Employee Leave
      • Employee Recordkeeping
    • Category 3
      • Independent Contractors
      • Tax Reporting
      • Improving Employee Performance
      • Firing an Employee
    • Would Your Workplace Practices Hold Up in an EEOC Investigation?

      EEOC Investigation
      Read More
  • SOLUTIONS
    • Employee Management
      • Hiring
      • Time and Attendance
      • Training and Safety
      • Recordkeeping
      • Employee Policies
    • Labor Law Posters
      • Poster Guard® Service
      • ComplyRight Posters
      • Electronic Posters
      • Employee Handouts
      • Partner Solutions
    • Tax Information Reporting
      • DIY Filing Solutions
      • Processing Services
      • Partner Solutions
    • Featured Solution

      Poster Guard Compliance Protection
      Learn More
  • ABOUT
    • Who is ComplyRight
      • Mission
      • Core Values
      • Leaders
      • Newsroom
      • Contact
    • Careers
      • Culture
      • Benefits and Perks
    • Brands
      • HRdirect
      • HRdirect Smart Apps
      • Poster Guard
      • eFile4Biz
    • Join Our Team

      Join Our Team
      Learn More
  • SUBSCRIBE

Be Careful How You Respond: Wrongful Termination Due to Retaliation is Always a Risk

Be Careful How You Respond: Wrongful Termination Due to Retaliation is Always a Risk
Published on May 13, 2019
  • Firing
  • Discipline

When it comes to terminating employees, it should be clear that you can’t fire someone for discriminatory reasons, including age, race, religion, sex, disability and genetic information. Discrimination remains illegal under various federal and state laws, regardless of your state’s at-will employment status.

Yet there’s another area that can get employers in trouble and open the door to a wrongful termination case: retaliation. What is retaliatory firing — and how can you prevent the legal complications associated with it?

Retaliation Claims on the Rise

Almost all federal employment laws include anti-retaliation provisions. Yet retaliation claims continue to rise.

The legal definitions and standards vary, but employees are generally safeguarded from retaliatory termination for the following types of legally protected activity:

  • Reporting illegal conduct – An employee who believes an employer has done something illegal has the right to report the situation internally or to authorities. Often called whistleblowing, some prime examples of this are:
    • Reporting discrimination or harassment
    • Revealing safety, health and environmental hazards
    • Reporting USERRA violations (military discrimination, or refusal to grant leave or reinstatement)
    • Complaining about wage and hour violations (overtime, minimum wage and child labor)
  • Exercising employee rights – An employer can’t retaliate against an employee for practicing his or her employment rights, such as:
    • Requesting reasonable accommodations for a disability or religious practice
    • Pursuing sick or medical leave rights, or taking time off to vote or serve on a jury
    • Filing a workers’ compensation claim
    • Refusing to obey an order reasonably believed to be discriminatory
  • Participating in an official investigation – Employees are entitled to participate in an investigation, hearing or lawsuit involving the employer. Whether providing information to federal investigators or being subpoenaed to testify against the company, employees must not be penalized for this involvement.

In fiscal year 2018, more than 51% of charges filed with the Equal Employment Opportunity Commission (EEOC) were due to retaliation — a 2.8% increase from the previous year.

Understanding Adverse Employment Action

Anti-retaliation practices are challenging to many employers because it’s human nature to act against someone who accuses you of wrongdoing, or exposes your business to fines, penalties, a damaged reputation or other financial loss.

However, retaliation is against the law and can result in significant penalties even greater than the underlying accusation or complaint of wrongdoing. To make a claim for retaliation, an employee must establish three things:

  • He or she engaged in a legally protected activity known to your business
  • Your business subjected him or her to an adverse employment action
  • There was a causal connection between the adverse employment action and the legally protected activity

Regarding the second and third point, an adverse employment action is any negative treatment impacting an individual’s employment or working conditions. Firing is the most common, and severe, action. Other examples include:

  • Refusing to hire, rehire or promote
  • Demotion
  • Suspension
  • Refusing to give deserved pay raise or bonus
  • Transfer to less-desirable position or schedule
  • Unwarranted disciplinary action, counseling or reprimands
  • Unfavorable job evaluations or performance reviews
  • Subjecting the employee to stricter rules or standards than those applied to other employees
  • Providing a negative employment reference

_____________________________________________________________________________________

Scenario: Retaliation after an unfounded charge of harassment

An employee files a claim with the EEOC accusing her employer of national origin harassment. Eventually, the EEOC dismisses the claim and concludes there is no evidence of unlawful harassment. Several months later, the employee is passed over for a promotion and believes the decision was in retaliation for her EEOC charge. She files a new charge with the EEOC, this time alleging retaliation. Even though the initial claim of harassment had no merit, she still can pursue a claim for retaliation and recover substantial damages against the employer if the promotion decision was retaliatory. In other words, retaliation laws often give plaintiffs a “second bite of the apple” after filing an unsuccessful claim.

_____________________________________________________________________________________

Proper, Protective Steps to Take

So where does this leave you? Retaliation claims routinely arise from nothing more than bad timing. Before terminating someone, always consider the timing and whether it creates the perception of illegality. In addition, all of the following should be true:

  • You are not terminating the employee because you (or any of the decision-makers involved in the termination) are upset by the employee’s protected activity (e.g., filing a claim of harassment or reporting you to OSHA)
  • You have legitimate performance reasons for terminating the employee
  • You have documentation and objective facts to back up your decision
  • Your actions are consistent with company policy and past practice
  • You have allowed a neutral manager or HR professional to review the decision and verify you have a legitimate business reason for the firing

The bottom line: You must be able to distinguish the termination decision from the protected activity and be confident there’s no connection between the two.

Secure Your Position with Smart Resources

The right tools and a clear action plan can help you handle the toughest situations. The Progressive Discipline Smart App from HRdirect is ideal for addressing employee discipline issues promptly and appropriately, as well as providing the necessary backup if termination becomes your only option.

For additional resources and expert direction, check out the free webinar, Avoid Termination Blunders: How to Fire an Employee Legally and Fairly, or the tip sheet, Fire Without Fear: Everything You Must Consider Before Choosing to Terminate.

HR101 Course 6

HR101 Courses

Be confident when handling employee discipline and termination with HR101 Courses

Learn More

Related Content

  • Firing an employee without warning
    Is Firing an Employee Without Warning Ever Acceptable? Eight Scenarios to Consider
    May 25, 2020

    Addressing employee behavioral issues can be tricky, but firing an employee without warning is never wise. In most cases, a … Read more

    Firing

    Discipline

  • Difficult firing scenario
    5 Difficult Firing Scenarios and How to Handle Them Fairly
    April 15, 2020

    Firing employees is never an easy or comfortable undertaking for managers. It requires careful thought and actions to avoid complications … Read more

    Firing

    COVID-19

    Discipline

  • Is it Legal? Critical Considerations to Avoid Firing Risks
    Is It Legal? Critical Considerations to Avoid Firing Risks
    April 17, 2019

    Deciding whether to fire an employee is rarely simple. You must weigh numerous personnel and business factors, as well as … Read more

    Firing

    Discipline

  • Avoid Termination Blunders: How to Fire an Employee Legally & Fairlyplay-button
    Avoid Termination Blunders: How to Fire an Employee Legally & Fairly
    September 2018

    Establishing the necessary groundwork is critical when taking disciplinary action, and especially before firing an employee. An unfair or poorly … Read more

    Firing

    Discipline

  • Avoid Termination Blunders: How to Fire an Employee Legally & Fairly
    September 2018

    Establishing the necessary groundwork is critical when taking disciplinary action, and especially before firing an employee. An unfair or poorly … Read more

    Firing

    Discipline

  • How to Fire an Employee Legally and Fairly
    How to Fire an Employee Legally and Fairly
    January 2017

    A sloppy or unfair firing could put you at significant risk if a disgruntled employee turns around and files a … Read more

    Firing

    Discipline

  • Fire Without Fear: Everything You Must Consider Before Choosing to Terminate
    Fire Without Fear: Everything You Must Consider Before Choosing to Terminate
    July 2016

    Determining whether it’s right to fire an employee is never an easy decision. A single misstep could complicate the termination … Read more

    Firing

    Discipline

  • Pre-Termination Considerations: Questions to Ask before Making a Final Firing Decision
    April 28, 2016

    Disciplining employees and making termination decisions are challenging for any manager. Make the wrong decision, and you could be a … Read more

    Firing

    Discipline

Newsletter Subscribe

Get the latest news and free resources from ComplyRight delivered straight to your inbox.

Thank You

You've just unlocked a wealth of FREE resources to build HR confidence.

ComplyRight provides free educational resources related to employee management, labor law and compliance. Better understand HR basics and learn how to address specific issues by browsing our knowledge center.

Please enter a valid email address.

Thank you. We already have your email address on file.

An error occurred while processing your request. Please try again.

Upcoming Webinar

Webinar Name

Date & Time

Presented by:

Learn More
Shop Our Brands 
HRdirect
HRdirect Smart Apps
Poster Guard
Formstax eFile4Biz

At ComplyRight, our mission is to free employers from the burden of tracking and complying with the complex web of federal, state and local employment laws, so they can stay focused on managing and growing their businesses.

©2020 ComplyRight, Inc.

Resources

  • Knowledge Center
  • Webinars
  • Research and Trends
  • Courses

Solutions

  • Employee Management
  • Labor Law Posters
  • Tax Information Reporting

About

  • Who is ComplyRight
  • Careers
  • Newsroom
  • Brands

Legal

  • Privacy Policy
  • Terms of Use

Popular Topics

Performance Policies Employee Leave Discrimination and Harassment Employment Law HiringLabor Law PostingsIndependent Contractors

Subscribe to Our Newsletter

Subscribe

Follow Us

  • RESOURCES
    • Knowledge Center
      • Tip Sheets
      • E-Guides
      • Podcasts
      • Infographics
      • Videos
    • Webinars
      • Upcoming
      • On Demand Webinars
    • Research and Trends
      • Compliance Survey
      • Trend Surveys
      • Minimum Wage Monitor
    • HR 101 Courses
  • TOPICS
    • Hiring an Employee
    • Creating Policies
    • Paying Employees
    • Discrimination & Harassment
    • Employment Law
    • Labor Law Postings
    • Employee Leave
    • Employee Recordkeeping
    • Independent Contractors
    • Tax Reporting
    • Improving Employee Performance
    • Firing an Employee
  • SOLUTIONS
    • Employee Management
      • Hiring
      • Time and Attendance
      • Training and Safety
      • Recordkeeping
      • Employee Policies
    • Labor Law Posters
      • ComplyRight Posters
      • Poster Guard®
      • Partner Solutions
    • Tax Information Reporting
      • DIY Filling Solutions
      • Processing Services
      • Partner Solutions
  • ABOUT
    • Who is ComplyRight
    • Newsroom
    • Careers
    • Brands
    • Contact Us
  • SUBSCRIBE
ComplyRight