Or is it? In its everyday usage, retaliation is essentially equivalent to revenge. When someone at work does something harmful to you because of something you said or did – whether good or bad, most people would consider that retaliation. However, what seems like retaliation in the workplace, often doesn’t match up to the legal definition.
To constitute a legal claim, retaliation must satisfy three elements: 1) an employee must have engaged in a protected activity; 2) the employee must have suffered an adverse action; and 3) the adverse action must be causally connected to the protected activity.
The question becomes, what is protected activity? Does complaining about my jerk of a boss count? How about asking for Saturdays off? The answer is, “it depends.” If an employee’s inquiry or complaint is related to a protected class or a violation of the law, and the employer punishes the employee for coming forward, then the odds are there was retaliation.
When an employee opposes or refuses to participate in a discriminatory act against a member of a protected class (including himself), this can be a protected activity. Under most circumstances in California, protected classes include: age (over 40), race, gender, gender identity, gender expression, sex, religion, national origin, ancestry, color, disability, medical condition, sexual orientation, marital status, genetic information, and military or veteran status.
Outside of protected classes, employees may be engaging in protected activity when complaining about or questioning what they have a good faith belief is an employer’s illegal activity. For instance, when an employee complains about not being paid overtime, health and safety concerns or tax evasion, these complaints may rise to the level of whistleblowing and serve as a basis for the employee’s retaliation claim.
An employer’s response to these complaints and/or inquiries are considered adverse if they change the terms and conditions of the employee’s employment. This may include cutting pay or hours, scheduling undesirable shifts, assigning more difficult or demeaning tasks, denying benefits or even termination.
When an employee can establish that the adverse action was directly related to the complaint, a successful retaliation claim may lie ahead. But if the employee was only complaining that the boss treats everyone badly or that the employer plays favorites, he should not act hastily. When you have a question about whether you or someone you know was retaliated against, contact an attorney for a consultation immediately to avoid losing your workplace rights.