When employees begin to feel pressure from their supervisors in the workplace, it is difficult to know what to do. Often, the pressure feels unwarranted, unfair, overwhelming, and too often—discriminatory or retaliatory. Despite an employee’s best efforts, the employment relationship may continue to deteriorate to the point where the employee is placed on a performance improvement plan, administrative leave, or worse, demoted or terminated.
In these situations, an employee will often contemplate their options, and they may even consult an attorney. After all, whether an employee resigns or is involuntary terminated carries disparate consequences that can persist throughout an employee’s career.
Proving An Adverse Employment Action
One of the key considerations for an employee is whether they have experienced an “adverse employment action,” or instead whether the employer’s actions constitute more routine supervision. In both discrimination and retaliation cases, an employee must demonstrate that they suffered some sort of adverse employment action. Statutes, such as the Minnesota Whistleblower Act and the Minnesota Human Rights Act, differently define what it means for an action to be sufficiently adverse but the general rule is that the employment action must materially and negatively alter the terms and conditions of employment. Clearly, an unpaid suspension, demotion, reduction in pay, or termination would suffice. But gray areas exist, such as lateral transfers and even long-term paid suspensions. One common employment action that almost certainly would not be considered an adverse action is a performance improvement plan, as courts routinely find that employers have a right to attempt to improve the performance of their workers.
Intimidation and Retaliation By Employers
In the retaliation context, another key consideration is whether the employment action “might have dissuaded a reasonable worker from making or supporting” from alleging discriminatory conduct or blowing the whistle on illegal conduct. In other words, if employers routinely engaged in this type of behavior, would workers generally avoid making complaints in the first place?
If you find yourself in a difficult situation, our experienced employment attorneys can help you clarify your options and arrive at the best decision—both long-term and short-term. While you may feeling pressure, the employer may as well, and we frequently can resolve these issues without jeopardizing the employee’s career moving forward.
