Law

What is retaliation?

Retaliation is when an employer, through a supervisor, manager, or administrator, fires or takes other adverse actions against an employee because of engaging in protected activities.

What is an adverse act?

A negative action is one that would discourage a reasonable employee raising concerns about a violation or engaging in any other protected activity. Retaliation can cause harm to employees individually and have a negative effect on employee morale. It is possible to miss the subtleties of an adverse action, such as exclusions from important meetings.

Negative actions could include:

Firing or laying off

Demoting

Neglecting overtime or promotions

Disciplining

Neglecting benefits

Rehire or hire the wrong person

Harassment or intimidation

Making threats

Resignation to a less desirable job or actions that affect prospects for promotion (such exclusion of an employee from training sessions)

Reduce or change hours or pay

Other subtle actions include mocking, isolating, mocking or falsely accusing employees of poor performance.

Blacklisting is an intentional interference with an employee’s future employment prospects.

Constructive dismissal (dismissal by the employer when working conditions are made difficult due to an employee’s protected activities)

Reporting an employee to the police, immigration authorities or threats of reporting them

Is temporary work protected against retaliation?

If a staffing agency provides protections for whistleblowers temporary workers to a company, both the agency and the client (commonly known as the host employer) can be held legally responsible for any retaliation against workers. OSHA’s Temporary Worker Initiative Bulletin no. 3 provides additional information about whistleblower protection rights for temporary workers. 3 – Whistleblower Protection Rights.

What is an example retaliation?

An example situation:

One worker told her employer she had called OSHA after she felt there was a fire hazard which her employer would not fix. Her employer had previously reported the fire hazard to her. There was a workplace policy that allowed employees to swap shifts when they were unable to work. After telling her employer she had called OSHA, the worker attempted to swap shifts but her employer wouldn’t allow it. The other employees were allowed to switch shifts.

Example analysis

OSHA has the right to notify workers if they are in danger. Workers who make complaints to OSHA are protected by section 11(c), the Occupational Safety and Health Act. The worker was protected under the whistleblower laws of OSHA by calling OSHA to report the fire hazard. Her employer was informed that she had called OSHA. After being informed by OSHA that she had called them, her employer denied her shift swap. She was also the only employee who was denied the opportunity to switch shifts. A denial of a shift swap is considered an adverse action. In this instance, her employer denied her shift swap as she was involved in protected activity. If her employer refused to allow her to switch because she called OSHA then retaliation occurred and the employer’s actions were in violation of section 11(c), Occupational Safety and Health Act.