Workplace Investigations: What Is Retaliation?

A “retaliation“ claim generally can be defined as illegal conduct or action that harasses, demotes, terminates an employee, or takes other action affecting employment such as threats, unjustified negative evaluations, unjustified negative references, increased surveillance, or any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights. Employment laws forbid retaliation when it comes to any aspect of employment, including:

• Hiring
• Firing
• Pay
• Job assignments
• Promotions
• Layoffs
• Training
• Fringe benefits
• Other terms or conditions of employment. Ensuring human resources compliance in these areas is a core duty for an HR Generalist.

Almost every federal and state law governing the workplace has an anti-retaliation provision. For example:

• Under the Family & Medical Leave Act (FMLA), it is retaliation if an employer were to terminate an employee for exercising his/her rights to take leave
• Under the Occupational Safety and Health Act, it is retaliation if an employer were to terminate an employee for reporting unsafe working conditions
• Under the Fair Labor Standards Act (FLSA), it would also be retaliation if an employer were to discipline or terminate an employee for lodging a complaint about overtime pay or for being improperly classified as an exempt employee

Employment laws include protections that make it illegal to retaliate against a person because the person:

• Complained or exercised their rights under the law
• Exposed misconduct, or
• Filed a charge of discrimination, harassment, or participated in workplace investigations or lawsuits, which are governed by labor law.

All of the laws the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL) enforce make it illegal to fire, demote, fail to promote, harass, or otherwise “retaliate“ against people (applicants or employees) because they filed a complaint either with the DOL or EEOC or internally with their employer. Retaliation is also prohibited because the employee complained to their employer about other certain prohibited conduct on the job, or because they participated in an employment proceeding, such as an investigation or lawsuit. It is also illegal for an employer to retaliate after the filing of a charge or complaint, even if the regulatory agency determines no prohibited actions even occurred.