When is Retaliation in the Workplace Against the Law?

September 17, 2013

We get questions all the time about retaliation. Some basic information about retaliation is included here. “Retaliation” is a loaded term. Its very utterance makes any job action sound illegal. But, in reality, retaliatory terminations must be very specific in order to present a legal claim.

Not all Retaliation in the Workplace is Illegal

Let’s clarify what is and what is not retaliation under employment law. When working in an employment-at-will state, like Georgia, we must be mindful that the employer holds most of the cards. The employer determines the work rules and sets all the expectations for employee performance and can act arbitrarily. There is no law that says an employer must make decisions fairly, correctly, or even behave in a professional manner. With this backdrop, employers and, by extension, their managers and supervisors, are fee to retaliate against employees for a wide variety of reasons. This can include punishing employees for excessive complaints about management, protecting friends, pointing out inefficiencies, or even complaining about unethical conduct. None of these activities are regulated by state or federal law.

Illegal retaliation, on the other hand, can violate several federal and state laws, including anti-discrimination laws, (like Title VII, Section 1981, and the Fair Labor Standards Act). OSHA, and whistleblower protection laws. Retaliation exists when an employer takes some punitive action against an employee because of his or her complaints about illegal discrimination, reporting of fraud waste or abuse when working for the government or a publicly traded company, exercising first amendment rights as a public employee, or complaining about violations of other federal statutes. Attorneys at Parks, Chesin & Walbert can help you sort through your situation and determine whether you’ve been retaliated against or just the on the receiving end of poor management decisions.

There are certain categories of workplace speech that are protected and employers cannot punish employees who engage in protected speech. For example, employees who file legitimate claims alleging that they have been the victims of discrimination cannot be subjected to retaliation in the workplace by their employers. Government employees cannot be punished for reporting violations of state or federal law, or for speaking out about matters of public concern. Employees of publicly traded companies cannot be fired or punished for reporting or opposing financial mismanagement under Sarbaines-Oxley.

Case Studies

A recent client, let’s call her Brenda, contacted us to see whether she had a case against her employer. She had observed a significant amount of favoritism on the job. There was a clique of managers who offered better work assignments and promotions to their friends. No matter how hard she worked and no matter how good her work was, Brenda was not offered the same opportunities. After Brenda complained about this favoritism, she found herself isolated and eventually moved out of her department. Brenda thought she was the victim of retaliation in the workplace. But, her situation was a classic example of employer conduct that may not be ethical or proper, but was not illegal.

Several years ago, we represented Robert, a security officer who worked at the Georgia Port Authority in Savannah, Georgia. Not long after 9/11, Robert reported security lapses at the port, including fences in disrepair and lax procedures that permitted unauthorized persons to access the port, which was a violation of the rules in place. After Robert reported these problems to the Inspector General, he was targeted by his supervisors and ultimately terminated from his job. We determined that Robert’s reports of lapses in security were protected under the Georgia Whistleblower Act. After filing suit, we obtained a significant settlement in his case.

Just this year, our firm secured a significant victory in the Georgia Supreme Court for Whistleblowers. In the cases of Warren v. Fulton County and Colon v. Fulton County, the High Court determined that counties are not protected from lawsuits by sovereign immunity and that whistleblower retaliation claims can be asserted by local city and county employees as well as state employees. The Warren and Colon cases involved employees reporting massive fraud against the County. The County responded by eliminating their jobs. See more about the case here. We look forward to getting the case to trial and obtaining another victory for our clients.

Know Your Rights

There are protections for employees who properly report violations of the law. If you are contemplating brining a serious issue to your employer’s attention, know your rights. It’s good to know whether you’re protected before taking that step.

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