I often have clients come into my office seeking advice concerning issues of retaliation in the workplace. I usually begin, after listening to the client’s story, with an analysis of what is considered unlawful retaliation, compared to conduct by a boss or co-worker that is actually motivated more by a simple personality conflict. In order to be classified as unlawful, the retaliation must be based on what the law describes as “protected activity.” So, for example, if an employee goes to their personnel department and files a complaint against their boss for being “unfair,” and the boss becomes upset at the employee and in some way punishes the employee, that is not unlawful retaliation. Obviously, the boss’s conduct, in this example, meets “Webster’s” definition since the boss’s anger is pursuant to the employee’s complaint and the response is punitive. Nonetheless, since the employee’s complaint is based on the employee’s perception of the boss’s treatment, the law does not provide a remedy and does not categorize the retaliation as unlawful. If, however, the employee’s complaint was based on sexual harassment, any form of retaliation would be considered unlawful retaliation.
The easiest way to understand the difference, since in both examples we are dealing with an employee’s perception of the boss’s conduct, is to realize that the law does not define “unfair conduct” as unlawful; whereas there is a statue that prohibits harassment of a sexual nature within the workplace. Hence the term “protected activity” when describing the employee’s complaint to the personnel office. Therefore, in order for the retaliation to be unlawful, the conduct that is the subject of the complaint must include allegations of unlawful conduct.
Often, at this point of the interview, the client will indicate to me that the company handbook states that they have an “open door” policy, and consequently retaliation for any complaint should be unlawful. I often agree with their statement, but nonetheless, as an attorney, I have the unpleasant task of informing them that an employee handbook does not create law since, under most conditions, the handbook will include a disclaimer stating that the contents of the handbook are for informational purposes only, do not create any enforceable rights, and can be changed at any time at the sole discretion of the employer. Therefore, when an employer does not comply with it’s own policies, that conduct by itself is not considered unlawful conduct. Therefore, the complaint would not be considered “protected activity.”
Nonetheless, virtually any statute or law pertaining to the workplace does include a provision that makes any form of retaliation by an employer, pursuant to an employee’s complaint, unlawful retaliation. Some examples of these laws include complaints based on gender, age, ethnic background, race, color, religious preference, and sexual preference. Therefore any complaints alleging violations based upon these categories is “protected activity.” Also, filing a Worker’s Compensation or Wage claim is considered “protected activity,” as is filing OSHA complaints.
If you are experiencing what you believe to be workplace retaliation, the prudent course of action is to check with an employment attorney to determine your rights.
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