Almost every company has policies in place to prevent and prohibit workplace retaliation. The purpose of these policies is to encourage employees to be proactive with management as issues arise, without the employee fearing that they will ultimately lose their job.
However, as many of our clients have experienced, workplace anti-retaliation policies do not prevent workplace retaliation. Typically, when an employee reports unlawful conduct or other actions that violate company policy, there is another employee (or the company itself) who feels exposed. In these tense situations, the employee (often a supervisor) may lash out or take other more discrete actions with the intention to force you out of the company, or at least dissuade you and others from “blowing the whistle” again.
When this happens, countless questions race through our clients’ minds: Why did I report this in the first place? Is my job safe? Should I report the retaliation as well? How can I get myself out of this situation? While every situation is different, consulting with an attorney early on will help you answer all these questions, exert as much leverage as possible on your employer, and hopefully put your mind at ease.
Should I Report Retaliation?
The first thing to consider is whether to report the conduct at all. A crucial question at this stage is whether your report would actually protect you from retaliation. While companies have anti-retaliation policies in place that purport to protect employees from retaliation, you do not always have legal recourse for certain forms of retaliation. For example, if you report a violation of the company’s policy that is not against the law (such as the company’s policy related to nepotism or consensual relations) and the employer then retaliates, you may have little legal recourse to hold the company responsible. On the other hand, if you report discrimination, fraud, contractual breaches, or other unlawful actions, then you are more likely to be legally protected from retaliation.
Where to Report Retaliation
The second thing to consider is whether to report the conduct, even if it does violate the law. This depends on your employer’s internal policies, the evidence you have supporting the violation, and the likelihood your employer will consider your report to be legitimate. It is also important to note that while companies in many states (including Minnesota) cannot retaliate against you for reporting illegal conduct, such protections do not mean that employers cannot eventually find a way to retaliate in a way that will be difficult if not impossible to prove. This is why it is important to secure legal counsel early on to create as strong a record possible.
Determining the Strength of Your Retaliation Case
Another thing to consider is what to do when you perceive retaliation. Not every minor grievance is considered to be sufficiently retaliatory, and in many cases there needs to be what is considered “adverse employment action.” If you report conduct you believe to be retaliatory but does not qualify as illegal retaliation, you could put yourself in a more vulnerable position.
The takeaway from all this is to engage Schaefer Halleen’s experienced workplace retaliation attorneys early on when you find yourself considering whether to report underlying conduct or the potentially retaliatory response to your initial report. We can provide effective, actionable advice and advocate for you in a way that will put yourself in as strong a position as possible to remain with the company or seek appropriate severance terms, whichever is your preference.
