Many employees are very much aware that their employer may not discriminate against them or harass them but fail to realize there are legal protections in place to prevent employment retaliation. However, as an employment attorney in San Jose can explain, the ways in which an employer retaliates can be very subtle and difficult to prove.
Cause of Action
To establish a case that an employer retaliated against an employee, it must be proved that:
- The employee engaged in a protected act, and
- The employer subjected the employee to an adverse job action, and
- There was a connection between the protected activity and the adverse action.
There are many types of protected acts under the law. Most often seen are cases where the employee reports a case of discrimination or harassment. Any adverse action by the employer is prohibited if the employee is reporting discrimination or harassment directed at them or another employee. In addition, there need not be an actual incident of discrimination or harassment; if the reporting employee had a good faith belief that there was, any retaliation is unlawful.
Other protected acts include reporting illegal activities, refusing to participate in illegal activities, filing a workers’ compensation claim or cooperating with any investigation of the employer.
Adverse Job Action
There is no precise definition of what constitutes an adverse employment action. Seldom is it as obvious as firing an employee immediately after making a complaint. Instead, courts look to the totality of the circumstances in evaluating the employer’s action.
More subtle examples of adverse employer actions include failing to receive a promotion, the denial of supplemental training, negative performance reviews or a change of schedule.
The employee must demonstrate that engaging in the protected activity triggered the adverse action. The employer will naturally allege that the adverse action was completely justified by the employee’s work behavior and had nothing to do with the protected activity. The employee’s wrongful termination lawyer must show the connection; for example, were all performance reviews positive before the incident and negative after? Would the change of schedule make it impossible for the employee to take their child to school and still get to work on time? The facts and circumstances of the case are crucial.
Contact an Employment Lawyer in San Jose for Legal Advice
Sometimes it’s difficult to know if you are the victim of retaliation. For a complete understanding of your rights and for any questions, call Lori Costanzo at 408-993-8493.