Retaliation and unlawful termination
By WORLDLawDirect [July 6th, 2012]
Protection against employer retaliation takes two forms.
- The first protection prohibits retaliation for the opposition to unlawful action or discrimination. Examples of this protection include a worker refusing to participate in illegal or discriminatory acts at work, or reporting complaints of illegal discrimination against others to management or a supervisor. -- "Whistle blowing" statutes at both the Federal and state levels fall in this category by protecting employees opposing illegal acts by their employer. Union activities, including union organizing and certification efforts, are protected and cannot be a basis for adverse employment action under ferderal and most state laws.
- The second protection involves freely participating in actions taken against discrimination. Examples are testifying or assisting other employees who are claiming discrimination, seeing a lawyer, participating in an investigation or hearing, providing information of any illegal activities to outside investigators or agencies, or notifying the employer of one’s own filing of a complaint based on illegal action that violates the discrimination laws or other laws that are meant to protect the public. Any such retaliation forms a separate basis for a complaint to the EEOC or the state agency involved.
Unlawful termination is not covered under federal law unless a specific statute such as those discussed above are involved. However many states have unlawful termination statutes or case law which protect workers who have a written employment agreement, or who were led to understand by the employee manual or other method that there would be certain rights and due process procedures involved in any termination. Union contracts almost always have job protection rules with complete arbitration clauses which can serve to protect the worker well if fully invoked. However if there is no union contract, then the degree of protection is usually less and depends on the current law of the state in which the employment occurred, or where the original hiring agreement took place.
Some states provide other additional protections not provided at the Federal level. Included among these are protections barring discrimination on the basis of sexual orientation, marital status, welfare recipient status, wage garnishment for child support, record of an arrest and/or conviction, and armed services or national guard participation. All of these follow the general rules stated under the above categories barring any differentiation in treatment, including harassment, stereotyping, derogatory epithets, or discrimination based on membership in associations connected to the group protected by the law.