Retaliatory Discharge

What is Retaliatory Discharge?

The term “retaliatory discharge” is used in workplace situations when an employer punishes an employee for his actions by terminating him. Typically, the term is used when the employee was fired after reporting the employer’s wrongful conduct. This type of action is illegal and is considered to be a form of wrongful termination.

This means that employers are prohibited from firing workers for conduct that is considered to be protected or lawful. An employer may terminate an employee only under legal circumstances, such as poor work performance or illegal activity.

What is Protected Activity?

There are two basic forms of protected activity. If it is shown that an employer has terminated or punished an employee for participating in one of the forms of protected activity, the employer can be charged with retaliatory discharge. The two types are:

1. Disagreement with employer’s discriminatory acts: Here, the employee must have a reasonable, good faith belief that the employer’s actions are discriminatory or otherwise unlawful.
2. Participation in investigations or hearings: This form of protected activity means that the employer cannot terminate or punish an employee for having participated in an investigation related to an employer’s unlawful activity. The reasoning behind this is that employees should be free to participate in these investigations and being fired because of the participation would interfere with the justice system. Further, an employer cannot fire the employee even if the results of the investigation are inconclusive. This form of protected activity does not require the employer to have a reasonable belief in the validity of the claim (simple participation in the investigation will suffice).

All employees are covered under protected activities, even former employees who had made reports about the employer. Further, there is no requirement that the employee be included in any type of protected class based on race, religion, sex, etc.

Proving Retaliatory Discharge

Under the law, there are specific elements that must be proven in order to succeed on a claim of retaliatory discharge. Specifically, the three elements are:

1. The employee rightfully opposed his employe’s discriminatory acts or participated in protected activities;
2. The employee was fired, terminated, or punished by the employer; and
3. There is a distinct relationship between the firing and the protected activity.

Evidence

In order to prove a case of retaliatory discharge, certain evidence must be offered to show a connection between the termination and the protected activity. Here, two types of evidence are permitted:

• Direct evidence: This is a verbal or written statement and shows that the employer fired the worker because of the worker’s complaints or participation in an investigation. Letters and emails are common forms of direct evidence.
• Circumstantial evidence: This is a type of evidence that suggests the connection between the termination and the protected activity. It may not be verbal or written, but can include the actions of the employer prior to or following the termination.

Do You Need an Attorney?

If you believe that you may have been a victim of an unlawful termination, contact the professionals at 702 DEFENSE. Their attorneys will answer your questions and provide you with the representation you need.