Retaliation is a type of practice that is deemed unlawful under employment laws.  An employee may experience retaliation when he or she makes a complaint about sexual harassment, discrimination, or some kind of illegal activity.  The way an employer may exercise retaliatory behavior is by punishing an employee for making the complaint.   Punishing an employee for making a complaint may be expressed through demotion, reduced pay, reduced work hours, removal from the work schedule, denial of employment benefits, reprimanding the employee for fictitious reasons, and termination.  Again, to retaliate against an employee after he or she makes a complaint, may result in legal proceedings being brought against the employer. If an employee does feel as though they have been retaliated against after making a complaint, he or she should contact a retaliation lawyer to discuss their potential claim against their employer. Below are a few situations where an employee may find themselves retaliated against.

1. You make a complaint about sexual harassment.

Although it is considered unlawful behavior, sexual harassment is the most common form of harassment in the workplace.  Sexual harassment can be exercised through comments, visuals, rumors, or physical contact.  According to the law, an employee has the right to report sexual harassment without any repercussions.  This means that an employee’s position at work is protected in the event that he or she makes a formal complaint regarding sexual harassment. For example, Nina worked for an advertising company.  Recently a new director was hired to oversee her department named Larry.  Soon after Larry was hired, he gave extra attention to Nina; attention that Nina did not welcome.  Often Larry would make comments about Nina’s breasts to other male employee’s, making jokes that Nina’s breasts were bigger than her brains.  Nina was afraid of Larry as he had cornered her in the copy room a few times and asked her if she would ever consider dating anyone in her department.  Most recently, Nina had asked if she could apply for a promotion and in reply, Larry asked “what do I get?” and winked.  Fed up and overwhelmed, Nina made a formal complaint to the head supervisor of the company.  A few days after Nina made the complaint, she was demoted and moved to a smaller office but still remained under the supervision of Larry and his tormenting.  Nina sent several emails to the head supervisor complaining of the continued harassment but each one went unanswered, Two weeks later Nina was let go from her job without reason.  Here, Nina may have been a victim of sexual harassment but was also then made a victim if retaliation after she spoke up.  The timeline follows that after Nina complained, she was demoted, placed in a smaller office and then let go.  These actions can all be construed as punishment for making the complaint about Larry sexually harassing her on multiple occasions. If Nina were to take her situation to an Employment Lawyer, she may have a claim against her former employer for sexual harassment, retaliation, and wrongful termination.

If an employee feels as though he or she is being sexually harassed he or she should make a formal complaint which entails details of who was the harasser, what occurred, when it took place, and list any witnesses.  It is required by law that employers have an anti-sexual harassment policy in place, so after an employee makes a complaint, there should be steps in place within the policy that should be followed.  An employee can make a complaint to a manager, supervisor, or Human Resources Department.  The complaint does not even need to be made to that particular employee’s direct supervisor or manager, it just needs to be made so that the next step in the policy can begin which is usually that all managers or supervisors are taking the formal complaint to their supervisor or directly to the Human Resources Department.

2. You take or request a leave of absence

Employees have the right under certain employment laws to take a leave of absence for particular reasons.  Some of those reasons may include a medical leave, disability leave, or a leave to care for an ill family member or for incidences regarding pregnancy.  If an employee requests to take an approved leave or actually takes an approved leave, an employer does not legally have the right to punish that employee for taking the leave.  For example, in some circumstances, an employer must reinstate an employee their job upon their return from their leave.  An employer who fires an employee or lets an employee go after he or she takes a leave or requests for a leave may be found liable for retaliation. An employee who takes a leave or requests a leave of absence and feels that they have been retaliated against for that very reason should call an Employment Lawyer.

3. You make a complaint about discrimination

There are employment laws which prohibit discrimination. Discrimination against an employee based on their age, race, religion, sexual orientation, creed, gender, sex, marital status, military status, veteran status, disability, medical condition, or pregnancy is prohibited by law.  Depending on the specific circumstances, if an employee were to complain about being discriminated against and they were treated adversely thereafter, he or she may have a claim in retaliation. An employee who was discriminated against and terminated for complaining about being discriminated against should call an Employment Lawyer.

4. You report something illegal

There are laws in place that protect certain employees who report illegal activity in the workplace. These types of employees who report such things as unsafe work conditions are called whistleblowers.  If a whistleblower reports illegal activity such as poor work conditions and is then fired, he or she may have a retaliation claim against their former employer.  A whistleblower who was terminated should call an Employment Lawyer to discuss their potential retaliation claim as well as wrongful termination.

Employees should not tolerate any kind of retaliation and should contact a wrongful termination attorney who offers free consultations.

Can you get fired for asking for time off? Can an employer punish you for sick leave?

People usually ask:

• can you be fired for using PTO?
• what happens if you have negative PTO?
• can you get fired while on PTO?

Let’s find the answers

Employees have certain rights to leaves of absence from work. When they are entitled to time off, the employer cannot punish them for taking it. When employers do punish employees for legally protected activities like taking time off that they are entitled to, that is known as retaliation, and there are a number of laws, both on federal and California state levels, protecting employees from retaliation. For many employees, it can be difficult to determine if an employment action taken by their employer is considered unlawful retaliation, so this article will shed some light on a few different kinds of retaliation and how they can apply to situations involving leaves of absence. The protections described apply to California employees, although some of the same protections are afforded federally.

• They verbally abuse you
• They spread rumors
• They fire you

Let’s start from the top of the list.

1. They verbally abuse you

   
   One way employers might retaliate against you is by physically or verbally abusing you after you take time off. For many, hopefully, it is difficult to imagine a boss treating employees that way, but for others, it is all too familiar. To help paint a clearer picture of what this kind of situation might look like for those who are unsure, let’s look at an example:
   Hayden is a construction worker who has been working with the same employer for two years in Southern California. He has not taken any time off before, but when he gets the stomach flu, he decides to cash in two of the sick days that he has accrued. He gives proper notice to his employer and does not think too much about work while he recovers, although he later learns that one of his coworkers screwed up something that Hayden would have been doing had he been there and the mistake was costly for their employer. When Hayden does return to work, he notices that his boss, Darryl, is harsher with him than normal. Over the next few weeks, whenever Darryl sees Hayden, he insults him or calls him a name, like “pansy.” Many of the insults are related to the idea of Hayden being weak, and Darryl refers to his flu in tones suggesting he does not believe Hayden was really sick. Having provided a note from his doctor, Hayden is not sure what else he could have done to avoid the situation he is now in. He no longer enjoys going to work because he is constantly worried his boss will be around making cruel comments and encouraging his coworkers to be similarly hostile.
   In this situation, Hayden took a sick leave he had earned and was punished for it in the way of verbal abuse. Darryl should not be acting this way towards his employee and could be liable for unlawful retaliation.

2. They spread rumors

   
   Maybe the last time you thought about rumors was in high school, back when for a lot of students, alleged scandals about delinquency or sexual activity were the nail in the coffin to a punishing social life. Hopefully, rumors have been less of a problem since then, but if your employer still has the instincts of the stereotypical high school bully, then you may end up suffering once more at the spread of vindictive gossip. One way some employers might retaliate against you if they are angry about you taking time off is by spreading rumors to turn your coworkers against you. Let’s take a look at an example scenario:
   “Garfield works as a masseuse at a resort in Northern California. One day, he is contacted by an organization he once signed up for that matches people to sick children who need bone marrow transplants. They discovered that he was a match for someone in San Diego. Excited at the prospect of saving a child’s life, Garfield requests time off from work to donate bone marrow. The organization recommends that he take as many days as he can so he can recover as much as possible before returning to work, so Garfield checks state law and asks for the maximum required five days off. When Garfield comes back to work after his leave, he notices that his coworkers are treating him differently. Eventually, he asks someone what’s going on and discovers that someone has been telling everyone at work that his leave of absence was to interview for other jobs because he didn’t like his coworkers. Shocked, Garfield asks around and eventually figures out that the person who started the rumor was his boss.”
   In this situation, it is possible that Garfield’s boss is spreading this rumor because he is upset about Garfield taking time off. If an easier resolution cannot be found, Garfield may end up resorting to a lawsuit against his employer for retaliation.

3. They fire you

   
   Perhaps one of the clearest forms of retaliation, firing an employee for taking protected time off is also often one of the most detrimental actions an employer can take to punish an employee. Let’s look at how a scenario like this might play out:
   “Greta has been working part-time as a legal assistant at a law office in Los Angeles with nine other employees for just a few months. She was pregnant when she was hired, but was not yet showing. When she started showing up, her employer did not seem very happy. At Greta’s last doctor’s appointment, she was told she needed to be on bed rest for the rest of her pregnancy due to some complications. Greta follows the proper protocol in informing her employer of her need to take pregnancy disability leave and providing the required documentation from her doctor. She estimates that she will be gone for about four months, about two months before the birth and about two months post-partum. Her employer, Greta, is upset about this and tells her she no longer has a job with him. He rants at her about trying to trick him and not telling him she was pregnant when he hired her. She leaves, seven months pregnant, and finds an employment attorney to discuss her options.”
   Greta’s employer, under California law, must provide her up to four months of pregnancy disability leave since he has more than 4 employees; it does not matter that she is a recent hire or that she works only part-time. He cannot legally fire her for requesting this time off, and because he fires her immediately after her request and rants at her about pregnancy, Greta could be very successful in suing him for wrongful termination.

If any of these situations sound familiar to you or if you believe you have been retaliated against in some other way for taking time off or for other legally protected activity, contact a labor lawyer. With their help, you may be able to get restitution.

The Pregnancy Discrimination Act of 1978 (Pub.L. 95–555) amended the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy. This Act outlaws discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” Before this law existed, employers could discriminate against pregnant employees without any consequences. For example, women in physically demanding jobs who could no longer lift heavy objects during pregnancy could be fired. Now, “if an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing light duty, modified tasks, alternative assignments, disability leave, or leave without pay.” The Pregnancy Discrimination Act was a historic step in the women’s rights movement, enabling more mothers to exist in the workplace.

            Recent events in the news illustrate how this law protects expectant mothers around our country. From Walmart to Wall Street, pregnancy discrimination can occur in any place of employment. For example, a recent New York Times investigation (NYT) found that expectant mothers in physically demanding jobs miscarried after employers denied their requests for accommodations. Certain employers ignored doctor’s notes that their employees provided, which stated that accommodations were necessary to protect their health. Four employees who worked at XPO Logistics warehouses, three of which provided doctor’s notes, had miscarriages when their employer refused to provide requested accommodations. The Pregnancy Discrimination Act ensures that these women can sue their employer for damages. No woman should have to choose between losing her unborn child or her job. The enforcement of this act will help ensure that no mother has to face this awful decision.

            Pregnancy Discrimination can affect women in the workplace in other ways. Expectant mothers face a new type of glass ceiling: the “maternal wall.” The maternal wall may exist when a woman becomes pregnant and is subsequently unfairly discriminated against at work. She may be denied a promotion, a bonus, or her salary may lag behind her male peers who do the same work. “Some women hit the maternal wall long before the glass ceiling,” said Joan C. Williams, a professor at the University of California Hastings College of Law who has testified about pregnancy discrimination before. “There are 20 years of lab studies that show the bias exists and that, once triggered, it’s very strong.” The Pregnancy Discrimination Act gives expectant mothers legal rights to help ensure that their career progress won’t be hindered by having a child. Another New York Times report (NYT) demonstrates this workplace issue. For example, Rachel Mounties won several awards for being a top salesperson at Merck, a pharmaceutical company, when she got pregnant. She was laid off three weeks before she gave birth. Stephanie Hicks, another mother in the workplace, sued the Tuscaloosa Alabama police department for pregnancy discrimination (Hicks v. City of Tuscaloosa, Alabama). Ms. Hicks was breastfeeding her newborn at the time, and her doctor told her that her bulletproof vest was so tight that it risked causing a breast infection. In situations like these, the Pregnancy Discrimination Act helps protect mothers from being unfairly hindered in their careers.

Pregnancy discrimination can also take the form of unequal pay for the same work. We often hear about the “gender wage gap,” but the pregnancy wage gap maybe even more significant. According to a 2014 analysis by a sociologist at the University of Massachusetts, Amherst, each child chops 4 percent off a woman’s hourly wages. Similar findings came from researchers at the Census Bureau who recently examined the pay of spouses in the United States. Two years before couples had their first child, the men earned only slightly more than the women at work. By the time their children turned 1, however, the pay gap had doubled to over $25,000. The researchers said that women taking maternity leave, dropping out of the workforce, or working fewer hours during motherhood could contribute to this wage gap, but it does not explain all of it. The researchers claimed that, among many employers, there is a significant and unfair bias against pregnant workers. The Pregnancy Discrimination Act offers mothers a vital legal avenue to fight against this harmful bias. 

            Legal protection under the Pregnancy Discrimination Act ensures that mothers can reach their highest potential in the workplace. Many mothers are doing just that. For example, Serena Williams competed in the 2017 Australian Open while pregnant. Ultimately, she not only competed but also won the tournament for the seventh year in a row. Her pregnancy did not hold her back from pursuing her professional goals. Serena’s story demonstrates how resilient pregnant mothers can be and that they can still achieve the highest standard in their professional field. Susan Wojcicki, the CEO of Youtube, is another example of a high-performing working mother. She is the mother of 5 children while leading one of the nation’s largest media companies. Susan has publicly emphasized the importance of fitting in family time around her busy work schedule. Her story also demonstrates how mothers can achieve professional success when they are not unfairly discriminated against in the workplace.

            As evidenced by the news stories above, the Pregnancy Discrimination Act of 1978 protects both the health and career prosperity of working mothers. When mothers are given their lawful legal protections in the workplace, they can offer vital industry contributions and rise to the top of their career field. We know that motherhood is already one of the toughest jobs out there. For mothers who also pursue professional careers, the Pregnancy Discrimination Act is essential to their workplace prosperity. As a woman who desires to have children one day, I am so thankful to live in a country where a law like this one exists. I do not want to have to choose between having children or a career. The Pregnancy Discrimination Act will afford me protections in the workplace so that I may pursue not only my dream of having children but also my dream to become a successful wrongful termination attorney.

For more info about employment discrimination in the workplace, you can contact a pregnancy discrimination attorney.

Author: Victoria Breese, from College of the Holy Cross

1.  Sexual Harassment and Revenge

 It’s hard enough as it is to tell your tinder date after the first meet-up that you’re just not that into them.  Perhaps you do it over text or ghost them and hope they just give up; its just plain uncomfortable either way. But how do you have the same conversation with your boss? Or how do you tell a fellow colleague you’re not interested?  These people aren’t just some randoms you never have to see again, these are people you have to work with and see on a regular basis.  Making a complaint about sexual harassment can lead to wrongful termination.

The most essential aspect of a sexual harassment claim against a person is that the behavior towards the person was uninvited.  In other words, if one person’s flirtation is sexually and/or romantically motivated and the person on the receiving end of this behavior does not like it and wants it to stop, it is considered as unwelcome.  Once the person on the receiving end identifies the behavior as unwelcome, the behavior is considered as sexual harassment.  This can be problematic in a work situation especially if the harasser is in a managerial position and the victim is a lower ranking employee.  How does an employee tell their boss “no” without feeling like he or she may then experience acts of revenge from their manager or boss?

For example, Itzel, an employee at a retail store, was invited out for drinks after work by Lisa her manager.  At first, Itzel thought it was just a friendly invitation and agreed to attend.  However, while at the bar, Lisa tried to kiss Itzel.  Itzel pulled away before Lisa could make physical contact with her and said: “I’m sorry I have a boyfriend”.  After that night, Lisa told other staff that she and Itzel had “hooked up”.  As the rumor spread like wildfire, Itzel found herself feeling anxious to go to her shifts and uncomfortable.  Lisa began purposely scheduling Itzel during shifts where they would close the store alone together.  Itzel confronted Lisa at work and expressed her frustration with the rumors and that she was not interested in having a relationship with her beyond friends.  Here, Itzel expressed her lack of desire to have a physical relationship with Lisa at the bar when Itzel dodged Lisa’s attempt to kiss her and also when she told Lisa that she had a boyfriend.  Secondly, Itzel made it clear again that Lisa’s advances were unwelcome when she told her that she did not want anything beyond a friendship.  The fact that Lisa spread rumors of a sexual encounter between her and Itzel can be considered as sexual harassment.  Also, the way Lisa had organized the roster in a way that she and Itzel would be alone may be construed as a ploy to further her sexual advances towards Itzel. A few days later, Itzel was removed from the schedule and was never asked to return to work.

Here, Itzel may have a claim for wrongful termination in addition to a sexual harassment claim.  Being removed from the schedule may imply Itzel has been let go from her position and the events leading up to her removal may indicate that this was out of revenge by Lisa for rejecting her advances, making her termination wrongful. 

2.  Disability Discrimination

There are many laws in place created to protect employees or potential employees who have a disability.  The laws are there to provide a safe and fair space for employees to have a seat at the table in the working world regardless of their disability.  This means the way a company decides to hire or treat current employees who have a disability is regulated by laws that protect the employee from mistreatment and/or prohibit unfair hiring practices.

For example, Bob a job applicant for a sales company has dyslexia.  In order to carry out certain tasks, Bob requires a text-to-speech software to be installed on his work computer.  After disclosing this in his interview, Bob was told by management that although his resume was impressive, unfortunately, they could not “meet his needs”.  In this scenario, this may be seen through the eyes of the law as discriminatory hiring practices. 

But let’s say Bob was hired and he ended up working for the sales company for 2 years.  The company provided him the software for his disability and Bob was able to carry out his tasks accordingly.  However, after a recent management change, Bob began feeling excluded based on his disability. The new manager of his team George had taken notice of the software Bob used and asked Bob questions on a daily basis regarding his disability.  These questions made Bob feel uncomfortable and singled him out especially in meetings when George would refuse to delegate tasks to Bob.  Eventually, George fired Bob without reason.  Here, this may be construed as disability discrimination and in turn, would therefore possibly be wrongful termination.

3.  Medical Leave

Many employees encounter sickness, injury, illness, or conditions in their lives as well as within their immediate family.  An employee who has a particular medical issue may need to take time off from work to recover, receive treatment, or may even need an adjusted work schedule.  In certain situations such as these, some employers may react negatively by letting the employee go or finding other means of firing the employee in order to avoid having to accommodate the employee during their time of need.  An employer may feel even less inclined to provide adjustments for an employee if he or she asks for time off to care for a family member who has a medical condition. Fortunately, the law is compassionate in these particular scenarios and appreciates that life happens. So when an employer has a knee jerk reaction to fire an employee based on requesting medical leave, this can transform a termination into a wrongful termination.

For example, an employee who has a spouse who is receiving treatment for cancer may request leave to care for their spouse.  In this situation, if the employer denied the request, forced the employee to use their sick days, or terminated the employee from their position, this may be wrongful termination. 

For more info about Wrongful Termination please call a wrongful termination attorney.

Wrongfully terminated for no reason?

Recent cases have addressed the issue of whether the employer is obligated to “ensure” the employee takes these breaks. The cases have decided that employers are not obligated to police breaks and ensure no work is being performed during that time. Rather, employers simply must provide 30-minute, duty-free meal periods, and similarly a 10 minute rest break.

Even though employers are now not legally obligated to police rest breaks at no time can an employer retaliate against an employee for complaining about not receiving their statutorily entitled rest periods or breaks? If an employer is simply not allowing breaks or actively opposing breaks and an employee complains about this practice to his employer it would be illegal for the employer to terminate this employee to intimidate other employees into not complaining.

Similarly, if an employee complains about being discriminated on the basis of his race, sex, religion, age or disability and an employer terminates them because of their complaint this would be wrongfully terminated. Further, if for an employer terminate an employee for complaining about these

Whenever an employee complains about not receive rest periods, meal breaks and similarly to not be discriminated and harassment based upon their sex, age, race, or disability but is terminated for such complaints this would be wrongfully terminated. This article is not intended to give legal advice. If you need consultation concerning specific questions relating to meal and rest periods, or retaliation for complaints about not be provide these breaks call a professional employment attorney same as Stevens & McMillan at (800) 738-3353.