What Laws Protect Employees From Retaliation?

It is illegal for an employer to retaliate against whistleblowers or other employees who report various types of illegal activity. An employee who is fired, disciplined, or otherwise treated differently because the employee has complained about illegal activity may have the right to sue the employer under several legal theories:

• Retaliation. Many state and federal laws that give employees certain workplace rights (such as wage and hour laws, workplace safety laws, and laws that prohibit discrimination) also forbid retaliation.
• Whistleblower protections. State and federal laws protect employees who report certain types of illegal employer conduct from mistreatment by their employers.
• Public policy claims. Many states allow employees who are fired for reporting illegal employer conduct to sue for wrongful termination in violation of public policy.

Laws Prohibiting Retaliation

Most laws that provide workers with basic rights also prohibit employers from retaliating against workers who assert those rights by, for example, complaining internally, filing a complaint with an administrative agency, or filing a lawsuit. These laws include:

• Title VII and other laws prohibiting discrimination. Virtually all antidiscrimination laws also prohibit retaliation against employees who file a complaint, whether internally or with a government agency or court. They also protect employees who participate in an investigation of a discrimination or harassment complaint. (For more on these protections, see Retaliation for Reporting Harassment.)
• The Fair Labor Standards Act and state wage and hour laws. Employees who complain about wage and hour violations, such as an employer's failure to pay overtime, pay the minimum wage, or pay employees for work they have done, are also protected from retaliation.
• The Occupational Safety and Health Act (OSHA) and similar state laws. Employees who report workplace hazards are protected from employer retaliation.
• The Family and Medical Leave Act and similar state laws. Employees who request or take FMLA leave or time off under a state leave law may not be retaliated against.
• The National Labor Relations Act. Employees who join or express support for a union, or who otherwise take concerted action to improve their working conditions, are protected from employer retaliation.

Whenever an employee complains, to an employer, outside agency, or court, about a violation of workplace rights, chances are very good that the employee is protected from retaliation.

Whistleblower Protections

Employees are also protected from retaliation when they report other types of employer misconduct. There are a number of whistleblower protection laws that prohibit employers from retaliating against employees who report particular kinds of illegal activity. For example, the Sarbanes-Oxley Act protects employees who complain of employer actions that they believe to be shareholder fraud.

The Dodd-Frank Act, passed in 2010, provides whistleblower protections for employees who raise concerns about the conduct of financial firms and ratings agencies. Employees who report safety or environmental violations are protected by a number of federal laws. And, employees who report fraud against federal agencies or contracts are protected from retaliation by the False Claims Act.

These are all federal protections; many states have their own whistleblower laws, which protect employees from reporting everything from safety hazards to fraud against consumers.

Wrongful Termination Lawsuits

A number of states allow employees to sue for wrongful termination in violation of public policy if they are fired for reporting illegal activity by their employer (or for refusing to commit illegal actions). In these states, an employee who is fired for reporting criminal conduct or fraud can sue for damages.

Example: Fired for Filing a Discrimination Complaint

A reader writes:

I have been passed over for promotion at my job twice in the last few years. I think it's because I'm a woman. Both times, a man with less seniority and experience than me got the position, and my manager couldn't explain why I wasn't selected.

I spoke to the HR department about my concerns; they said the fact that a man got promoted instead of me isn't enough to justify an investigation. So I went to the local office of the Equal Employment Opportunity Commission and filed a charge of discrimination.

When the company got notice of my charge, it fired me. My manager said that I was disruptive and not a team player and that my complaint didn't have any merit. Is this legal?

This is absolutely not legal. In fact, it's illegal retaliation, and you should amend your charge to include these new facts.

The same laws that prohibit discrimination and harassment also prohibit retaliation: taking action against employees who come forward with complaints or participate in investigations of complaints.

If an employer were free to retaliate against employees who complain of illegal discrimination, employees would quickly get the message to keep their mouths shut. Because Title VII and other workplace discrimination laws are enforced only through employee complaints, this would undercut our country's commitment to civil rights.

Based on the facts you have related, it's not clear whether you will prevail on your complaint. However, your company should have investigated, including interviewing the decision makers to find out the reasons for their promotion choices.

And, even if you ultimately could not win in court, that doesn't give your employer the right to fire you for complaining. As long as you have a sincere, good faith belief that your complaint is valid, you are protected from retaliation.

Filing a charge with the Equal Employment Opportunity Commission (EEOC) will no doubt disrupt your workplace. The EEOC will ask your company to respond to your allegations and it may ask for documents, interview employees, and/or seek to mediate your claims. But disruption is the price of enforcing the law. Your company can't fire you because your complaint is disruptive, inconvenient, or difficult to answer.

Contact the EEOC investigator assigned to your case and find out how to amend your charge to include the new claim that you were retaliated against because you filed a charge of sex discrimination with the EEOC.

Adding this claim to your charge will allow you to pursue it in court. Ironically, whether or not the evidence ultimately supports your allegation of sex discrimination, your employer has responded by handing you a very strong retaliation claim.

Get Legal Help

If you believe you have been retaliated against for asserting your rights or reporting illegal conduct, talk to an employment lawyer right away. The statute of limitations for these types of claims can be very short, particularly for whistleblower claims.

And, there are very specific rules about what kind of report you have to make (and to whom) in order to be protected. An employer can quickly assess the facts of your situation and give you some advice about how to proceed.