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Retaliation and Wrongful Termination

An employer may fire an employee for many different reasons. But taking adverse action against a worker engaged in certain protected activities can constitute unlawful retaliation and wrongful termination. Federal law protects employees from retaliation, or revenge, for participating in protected activities, such as reporting unlawful activities or participating in an investigation into the practices of your employer.

See FindLaw's Wrongful Termination section for additional articles.

Federal Protections Against Retaliation

Many federal laws protect employees against retaliation from their employer. Some of the most commonly invoked protections are found in the Civil Rights Act, Age Discrimination in Employment Act, Americans with Disabilities Act and Equal Pay Act. If an employee, for example, participates in an investigation regarding discrimination in their employer's hiring practices, that employee cannot be terminated for doing so.

Many other laws, lesser-known laws, also protect against retaliation. Under the Family and Medical Leave Act, for example, employers may not demote or fire a worker for taking qualifying leave.

Protected Activities

An employer may not terminate or otherwise take adverse action against workers who engage in activities protected by the law. There are two broad types of protected activities:

1. Reporting Unlawful or Potentially Unlawful Behavior

An employee who reports their employer's potentially illegal behavior are protected against retaliation and wrongful termination. An employee's belief that there is a violation must be both reasonable and in good faith. Reports to federal or state enforcement agencies as well reporting problems internally are protected.

For example, an employee who reports potential work safety violations to the Occupational Safety and Health Administration (OSHA) would be protected from wrongful termination, as would an employee who reports sexual harassment or racial discrimination to his or her company's human resources department.

2. Participating in an Investigation

Employers cannot retaliate against employees who participate in an investigation, lawsuit or hearing regarding the potentially illegal practices of their employer. For example, an employee who is subpoenaed to testify in a wrongful termination case may not be fired for doing so. Similarly, a worker who provides information to federal investigators researching wage and hour violations may not be retaliated against.

Proving Retaliation and Wrongful Termination

There are three steps to proving a claim of retaliation and wrongful termination:

  1. Employee must show that he or she was engaged in a protected activity, such as opposing an employer's illegal discrimination or participating in an investigation
  2. Employee must have been punished in some way (this can include losing a promotion or benefits, being demoted, or being fired)
  3. Employee must show that the punishment was the result of the employee's participation in a protected activity

Demonstrating the connection between an employee's protected activity and his or her firing is often the most difficult part of a retaliation and wrongful termination claim. The law allows this connection to be established by both direct and circumstantial evidence. Direct evidence includes written or verbal statements that an employee was fired for engaging in a protected activity. Circumstantial evidence is based off inferring that an employee's firing or punishment was a result of his or her participation in a protected activity.

For example, take an employee being considered for a promotion who is suddenly taken out of the running immediately after she reports safety violations. This employee may have circumstantial evidence of retaliation if she can show that there was no other logical reason for her to be punished.

Employers often counter claims of retaliation by attempting to demonstrate valid reasons for an employee's termination or punishment. For example, an employer may claim that an employee was fired for being consistently late or underperforming, rather than for engaging in protected activities. The more valid reasons for an employer's actions there are, the harder it can be to prove retaliation or wrongful termination.

How a Lawyer Can Help

If you believe that you have been wrongfully terminated as retaliation for engaging in protected activities, contact a qualified employment law attorney . An attorney can help you understand how the law applies to your circumstances and help you decide what options to pursue moving forward. If you have been wrongfully terminated, you may be entitled to back pay, reinstatement, and even an award of punitive damages.

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