Employer Retaliation

The law protects employees against retaliation from employers for certain activities by the employees. Some of these activities include, making a discrimination or harassment complaint, filing a worker's compensation claim, taking medical leave, and complaining that overtime premiums are owed for work performed or that wages are due for hours worked. In each case, the employee must be acting in good faith. But if the employee is acting in good faith, the employer cannot retaliate. And even if the employee has acted mistakenly, the employer still cannot retaliate if the employee was acting in good faith.

To prove employer retaliation, an employee usually must show that (1) the employee engaged in protected activity; (2) the employee was the subject of adverse employment action; and (3) a causal link existed between the protected activity and the adverse action.

These claims are among the most dangerous for employers to defend. Often, timing is a critical issue in proving retaliation. When an employee engages in a protected activity and suddenly afterwards experiences an adverse employment action, a retaliation case will often succeed for the employee. The employee who succeeds in proving a retaliation claim will often also prevail on a claim for punitive damages. Every employer who is liable for punitive damages risks its continued existence. When astronomical jury verdicts are reported in employment cases, the usual factor most contributing to the high amount is the punitive damages.

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