Reporting harassment, wage theft, safety violations, discrimination, fraud, or other misconduct in the workplace is never easy. However, if you did, you did the right thing. Please be aware that you have the law on your side. It is illegal for employers to retaliate against employees for reporting or opposing misconduct or for participating in an investigation. If you do see or experience retaliation, there’s a good chance you also have the evidence to support it.
Still, retaliation often takes subtle forms. How do you know it’s happening? What laws protect you? Below, we define retaliation and offer valuable insights to keep in mind.
What Is “Retaliation?”
The term “retaliation” is defined broadly to include any action that might deter a reasonable worker from exercising their rights. In other words, employers can’t use “punishment” as a tool to silence employees.
Retaliation is any adverse action taken because you exercised your right to the following:
- Reported harassment or discrimination (internally or to a government agency)
- Requested an accommodation for a disability or pregnancy
- Complained about not being paid minimum wage or for overtime
- Reported safety violations or refused to perform work that is dangerous or illegal
- Whistleblowed about fraud or other illegal conduct (internally or externally)
- Complained about meal and rest break violations
- Participated in an investigation, gave a witness statement, or filed a charge
Employers are prohibited from firing, demoting, or taking other actions against you for engaging in a “protected activity.” Some of the most common adverse actions include these:
- Loss of pay, hours, or shifts; denial of overtime, desirable shifts, or other perks
- Sudden negative performance reviews without any prior warnings or a change in your performance
- Denial of training, promotions, or assignments you were otherwise eligible for or had been promised
- Transfer to a more remote location or a position that the employer seems to be setting you up to fail in
- Harassment, shunning, or hostility to deter you from asserting your rights or reporting illegal activity
- Threats related to immigration status or disciplinary write-ups for no valid reason
It doesn’t matter if the employer’s action would only be considered small. If it would discourage a reasonable person from reporting misconduct, it can still count as retaliation.
Examples of the More Subtle Signs of Retaliation
Retaliation can be subtle. Some employers even consider retaliation a “business decision.” That said, when reporting misconduct, watch for the following:
- Suspicious timing: You receive a write-up or schedule change right after you complain or give a statement to an investigation. Or, you start noticing adverse actions with no prior warnings.
- Shifting narratives: Your work performance suddenly “declines,” and you receive a negative performance review without warning and without any change in your actual work.
- Inconsistent rule enforcement: Your coworkers violate the same rule, but only you face discipline or punishment.
- Isolation tactics: You are removed from meeting invite lists, client accounts, or team chat groups without any legitimate explanation.
- Moving the goalposts: Your targets, quotas, or standards change unilaterally after you report misconduct, making said goal impossible to meet.
- Paper trail traps: You notice minor infractions that the employer suddenly and aggressively documents in your file to justify later termination or discipline.
Documenting the evidence can make a big difference. Timing and consistency often tell the story.
Laws That Cover You
While the details of the laws vary, in general, most employees are covered by a wide range of federal and state laws:
Title VII of the Civil Rights Act: Covers employees who oppose or report discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), or national origin
ADA and Pregnancy Discrimination Act: Cover employees who request accommodations or report disability or pregnancy-related discrimination
FLSA: Covers complaints about minimum wage, overtime, and misclassification
OSHA and state workplace safety laws: Cover reporting unsafe conditions
State whistleblower laws, the Whistleblower Protection Act (WPA), and Sarbanes-Oxley: Cover reporting unlawful activity, refusing to engage in illegal acts, or participating in government investigations
Equal pay laws: Cover employees who challenge pay disparities and talk about wages
California civil rights laws: Cover more people and provide longer time limits to file a claim than federal law
Many states also have specific whistleblower provisions, such as California’s Labor Code §1102.5,, which covers disclosures of suspected legal violations.
Please note that, in most cases, you don’t need to be “right” about the underlying conduct. You just need to have a good-faith, reasonable belief that what you reported was against the law.
Steps To Document and Preserve Your Retaliation Claim
1. Write your timeline
Create a contemporaneous timeline or log with the dates and times, who said what, and what changes occurred after your report. Note any meetings, emails, text messages, performance write-ups, or shift changes.
2. Preserve evidence (legally)
Keep copies of your performance reviews, the company’s policies, your work schedule, and your pay stubs. Hold onto copies of emails you send to HR or your boss, as well as any responses you receive. Do not take company secrets or violate valid confidentiality policies.
3. Identify comparators
Identify coworkers with similar job titles who did not report misconduct. Are they receiving more favorable treatment? Unequal treatment can help show a retaliatory motive.
4. Track damages
Document any lost pay, bonuses, benefits, out-of-pocket expenses, and evidence of emotional distress (e.g., trouble sleeping, inability to work, or anxiety)
5. Use internal channels (if it’s safe to do so)
A calm and written follow-up to HR can sometimes preserve the record and also give the employer an opportunity to remedy the problem before it escalates. It can be something as simple as, “I’m concerned that recent schedule reductions and write-ups began after my safety complaint on [date]. I would like to do great work and would appreciate clarification on this matter. Please let me know how we can resolve this.”
What if You’re Forced To Quit?
Constructive Discharge
If conditions at work are so difficult or hostile that a reasonable person would feel forced to resign, it may be considered a “constructive discharge.” In such cases, the law treats you as if you were terminated for purposes of damages and liability. This is especially true if the conditions (and timing) suggest that the employer intended to drive you away after you reported misconduct.
Have Questions? Our Employment Attorneys Have Answers
Retaliation is illegal whether it’s obvious or disguised as “business decisions.” If you’ve reported misconduct or exercised your rights and things at work suddenly change for the worse, you may have a claim. Remember to document everything. Don’t wait to act, and don’t do it alone. Seek legal guidance as soon as possible. Your claim can protect you — and your career — for the future. Contact our office today.
