Every significant worker protection law, whether at the federal or state level, protects workers who complain about and witness illegal or unsafe working conditions, yet retaliation remains, year after year, the most common form of worker discrimination. Some employers and supervisors simply cannot accept that workers have rights that must be respected, and their actions and reactions to questions or complaints can be outrageous and unrelenting. The news coverage reminds us of both the worker protection laws and the widespread disregard for them.
Retaliation occurs when an employer takes adverse action because an applicant or employee asserts rights protected by the law. Retaliation is often directed at whistleblowers and workers who complain about illegal discrimination or illegal wages, such as unpaid overtime, sub-minimum wages, or failure to pay the prevailing wage.
Here are some recent examples of retaliation that we are nominating for the Pelton Graham Retaliation Hall of Shame, which we will update from time to time.
- Two Connecticut restaurants were required to pay $137,465 in back wages, unpaid overtime, and liquidated damages to workers following a U.S. Department of Labor Wage and Hour Division investigation. Following the settlement, the restaurant owners allegedly used threats and coercion to force the employees into kicking back thousands of dollars paid to the workers, including:
- Driving employees to a bank to cash their checks for back wages or liquidated damages and demanding payment in the parking lot;
- Threatening with blacklisting.
- Firing employees and disparaging them to future employers.
- Threatening to report employees to immigration and law enforcement agencies if they failed to give up the monies to which they were entitled.
- A Missouri jury recently awarded Rosemary Salerno approximately $4.5 million in her whistleblower retaliation claim brought under the Missouri Whistleblower Protection Act. Ms. Salerno had refused to carry out an order from management to use approximately $500,000 in charitable donations to the Change for Charity Program to pay for the company’s operating expenses and was fired. The employer then contested her unemployment claim and unsuccessfully sued her for an alleged improper purchase of a piece of equipment. $4M of the $4.5M verdict was punitive damages, which may have been motivated due to the company filing the retaliatory lawsuit.
- A worker at a Holiday Inn Express & Suites hotel alerted their employer that exposure to carbon monoxide made them ill and asked the employer to call an ambulance. In addition to refusing the worker’s request, the employer allegedly threatened to terminate the employee. After going to the hospital, the worker was terminated.
- A federal court in Massachusetts issued a temporary restraining order against two construction contractors after they began a campaign of alleged threats and retaliation against an employee who complained about not receiving overtime pay and requested money he was due. They allegedly caused other individuals to follow and threaten the worker’s family and told other employees that they might lose their jobs because of the worker’s request. The DOL’s complaint states that the defendants’ conduct left the employee feeling threatened and fearful for his family’s safety.
- Santiago Pineda worked as a maintenance man for an apartment complex. Mr. Pineda and his wife lived at the apartment complex and had discounted rent as part of his compensation. He was fired and evicted after asking about receiving unpaid overtime, and the employer demanded a return of the rent discounts the Pinedas had received! In addition to the retaliation claim, Mr. Pineda was also allowed to claim damages for emotional distress.
Retaliation takes many forms; at Pelton Graham, we have seen a variety of actions taken against both complaining employees and witnesses, including:
- termination of employment;
- work-related threats, warnings, or reprimands;
- negative or lowered evaluations;
- transfers to less prestigious or desirable work or work locations;
- making false reports to government authorities or in the media;
- filing a civil action;
- threatening reassignment; scrutinizing work or attendance more closely than that of other employees;
- removing supervisory responsibilities;
- engaging in abusive verbal or physical behavior that is likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment;
- requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity; or
- taking or threatening to take adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).
These actions, taken in response to an employee asserting their rights, are illegal and actionable, but what exactly should a worker suffering this type of treatment do? You should first make a general complaint to your employer that you are suffering retaliation. The employer has an obligation to review complaints of retaliation, and sometimes things are resolved at this stage. If the conduct persists, you should keep a complete record of what is happening, who has witnessed it, and the documents that evidence the actions and seek professional advice.
The professionals at Pelton Graham are here to help. Contact us for a no-cost, no-obligation telephone, video, or in-person consultation.