An employer retaliates against an employee when the employer punishes the employee for complaining about certain employment practices. There are basically three elements to a retaliation claim. First, an employee must complain about a legally protected activity. Second, the employer has to take some adverse action against the employee who complained, and third, the adverse action has to occur within a reasonable proximity of the complaint.
The complaint must be about a âprotected activity.â Protected activities include any of the protected employment characteristics set out in Federal employment laws or State of Florida civil rights protections. For example, an employee who complains to her HR department that her supervisor is sending her inappropriate emails or making inappropriate comments about her looks is a form of sexual harassment which the employee has a right to complain about without fear of retaliation. Similarly, an employee who complains that he is being ridiculed because of his age or religion or gender is also protected from retaliation if he complains. Filing a charge of discrimination with the EEOC or filing a lawsuit for violation of Wage and Hour laws or the Family Medical Leave Act also are protected activities. Contrast this with an employee who complains that his boss is always raising his voice and yelling at everyone. This complaint does not in this example rise to the level of a protected activity and the employee may not have any protections if he is terminated or reassigned to a less favorable position.
The employer has to take some action that makes the employee aware that her complaint was not well taken. Being fired is the most obvious, but retaliation may also be in the form of shorter hours, less favorable shifts, demotion, unfavorable performance reviews, transfers or a change in work load.
And the adverse action taken by the employer must be taken within about 3 months of the complaint. This is not an inflexible rule, but courts tend to view an adverse employment action taken after 3 months as not necessarily being connected to the complaint made by the employee.
Related to retaliation is Whistle-blowing. Florida protects workers who report illegal activity or participate in an investigation of an employerâs practices. It also protects employees who are terminated for refusing to participate in an employerâs illegal activity. But as with retaliation, this does not mean that any activity will rise to the level of whistle-blowing. The courts in Florida have come to the conclusion that the activity must be illegal or reasonably believed to be illegal. For example, an employee will not be protected if she complains that her employer is closing his store before posted closing hours, because that is not illegal. While it may not be good business, it is not illegal. However, she would be protected if she refused to accept cash for goods or services without registering the cash as income, since that would constitute tax evasion.
Over the years, we have found that retaliation cases are some of the hardest for employers to defend because in many of the cases, the employer has a difficult time providing a reasonable explanation for why the adverse employment action occurred so close in time to the compliant.
Employees should be free to raise concerns about improper or illegal workplace practices without the fear of retaliation and the law protects those who do.