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What is Retaliatory Discharge?

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  • Written By: Mary McMahon
  • Edited By: C. Wilborn
  • Last Modified Date: 30 November 2016
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A retaliatory discharge is a situation in which an employee is fired as punishment or retaliation for engaging in a legally protected activity such as filing an discrimination claim, whistleblowing about illegal activities at the company, or refusing to engage in discriminatory behavior even when the employer orders it. This is a form of wrongful termination. Companies which engage in retaliatory discharge may end up paying high fees in damages to the employee, providing compensation not just for lost wages but for other issues such as mental anguish.

In order to be considered a retaliatory discharge, there must be a clear link between the protected activity and a firing. Few employers are unwise enough to openly state that they are firing someone in retaliation, because they don't want to leave employees with neat evidence like a letter clearly stating that someone is being fired for filing an antidiscrimination claim. As a result, often some sleuthing is required to learn more about a firing.

When an employee engages in a protected activity and is fired shortly thereafter, an argument that it was a retaliatory discharge as possible. The argument can be strengthened with evidence that prior to the firing, the company did not appear to be preparing to fire the employee, and that the firing was too closely linked with the behavior to be a coincidence.

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People who suspect that they may have been subjected to a retaliatory discharge can contact an attorney. The lawyer can review the situation, determine whether or not the person has a case, and take steps to help the person cover damages for lost work. Discharges can also harm a worker's reputation, making this an important part of the case as well; an accountant subjected to a retaliatory discharge, for example, might have trouble finding new clients because people might worry about why the accountant was let go.

Firing as punishment is not legal in most places, whether an employee is being fired for filing a disability claim, complaining about harassment or discrimination, refusing to engage in illegal activity, or whistleblowing. For this reason, companies are careful to document situations in which they are obliged to fire employees. In the event that an employee happens to be fired around the time of a protected activity, the company then has documentation showing that it had reason to fire the employee, such as numerous documents demonstrating that an employee was warned about a recurrent behavioral problem.

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dodgvipr99
Post 6

I'm just wondering if I might have a retaliatory case. The company I worked for (big oil company) was caught submitting illegal documents to the state. When the investigation started, another employee and I talked to a investigation agent and told them everything we knew. A month or two went by and we actually had to get attorneys that the company did not pay for, and shortly after, I along with four other employees were fired.

anon300869
Post 5

I am wondering if you are being threatened to be fired for looking for another job, does this fall under this law?

David09
Post 4

@miriam98 - If the company you’re working for is a large corporation and you’re about to blow a really big whistle, they can make life very difficult for you.

I’ve heard of high profile cases where people have received death threats and such. Yes, that’s illegal, but it’s quite possible that these dirty tricks get outsourced to other people with no ostensible ties to the company.

It doesn’t happen often, but for very big corruption cases it does happen. So in my opinion, I think you’d be better off quitting than being a whistle blower and bringing down trouble on you and perhaps your family.

miriam98
Post 3

@Mammmood - In my opinion, the only way to avoid a retaliatory discharge, or a punitive firing disguised as a layoff, whatever you want to call it, is to bring up your grievances anonymously if you can.

For example, take the software industry. There’s this ad that’s been running on the radio for quite some time. It says that if you know your business is using pirated software, you can call such and such a number and report it to the authorities.

The ad makes clear that your tip is completely anonymous so your boss won’t know. You’ll be blowing the whistle but not garnering the attention that it draws.

Mammmood
Post 2

@allaenJo - That may have been legal, but I don’t think it was fair.

I’ve noticed that nowadays most companies try to avoid firing employees altogether, unless there are cases of egregious misconduct.

Instead, they opt to clean house during rounds of layoffs. This is an easy route to take when the economy is bad, and layoffs are happening anyway. It also relieves the boss of having to provide a paper trail for the termination; he can just simply say it was cost cutting.

For the worker, it provides a graceful exit. It’s hard to retaliate against a layoff, especially since you are getting severance along the way.

Some employers may not be able to afford the layoff approach because it does require some severance, but it does provide a win-win situation in my opinion

allenJo
Post 1

I worked for a company where a coworker had constant friction and disagreements with a manager. Eventually the coworker went to the manager’s boss, who redirected her back to the manager to work things out.

I don’t know if you would consider the worker’s appeal to the manager’s boss a “protected activity”; she may or may not have been whistle blowing, or at the very least was just venting some frustrations.

At any rate the manager decided he had enough. He knew he needed a paper trail if he were to let the worker go, so he arranged for a series of performance “reviews” in which he indicated that the worker’s performance was deteriorating.

The worker was on to what the manager was doing, but tried to comply by improving her performance; but it didn’t matter. After the last review, the manager says she was still not up to par, and fired her.

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