Worker retaliation can happen any time an employee files a legal claim against their employer. Maybe they were injured on the job and have made a worker’s compensation claim. Perhaps they were the victim of discrimination due to their race or religion. Whatever the reasoning, workers have rights when they pursue legal action or other claims against their employers. Most employers know the law and do not engage in behavior that can land them in hot water. Others may carefully skirt the law and push their luck, hoping workers do not know their rights. Workers who have dared to assert themselves on the job and end up on the receiving end of retaliatory behavior should contact an attorney immediately.

What is worker retaliation?

Punishing employees for asserting their rights in the workplace is called worker retaliation. Some of the common actions that can lead to an employer trying to get back at an employee include:

• Complaints about workplace discrimination or harassment.
• Filing for workers’ compensation benefits.
• Refusing to participate in illegal acts at the direction of an employer.
• Requesting or taking a leave of absence under the Family and Medical Leave Act (FMLA).
• Serving as a witness in an Equal Employment Opportunity Commission (EEOC) investigation or any other legal inquiry against an employer.
• Whistleblowing against an employer to prevent fraudulent or illegal practices.

Employees who face undue consequences after engaging in any of these behaviors have legal grounds for a retaliation claim against their employers.

What is protected activity?

Protected activity is the legal term describing the activities that workers can engage in without fear of retribution from their employers. Most employers understand what constitutes protected activity, but that does not mean they cannot be tempted to retaliate if they think they will not get caught. Here are some examples of things that fall within the legal definition of protected activity:

• Filing a discrimination complaintagainst a supervisor or other person in a position of authority in the workplace.
• Organizing a union or other collective bargaining unit to improve employment terms and workplace conditions.
• Providing information in an investigation against an employer for discrimination or harassment.

These are just a few of the most common examples of protected activity in the workplace. As a rule, any discriminatory behavior as defined by the Equal Employment Opportunity Commission (EEOC) is a protected activity. This includes punitive behavior for any discrimination based on age, gender, race, religion, or sexual identity/orientation.

Recognizing the signs of worker retaliation

Sometimes the signs of worker retaliation are clear while other times than can be more subtle. Termination is one of the most obvious signs that an employer is striking out against an employee who dared to engaged in a protected activity. Here are some other ways places of employment can take castigatory actions against employees.

• Demotion. Employees that previously were on the fast-track for advancement within an organization that suddenly lose status, responsibilities or seniority privileges likely are victims of worker retaliation.
• Exclusion. Being disinvited to staff meetings, trainings, or other official workplace activities can be a form of workplace punishment from superiors.
• Negative performance reviews. When a previous star employee suddenly is on the receiving end of poor performance reviews and disciplinary action placed in their employment files, it can be a surefire sign an employer is engaging in vengeful behavior.
• Reassignment. Reassigning duties and work schedules in a way that causes the employee undue hardship is a form of worker punishment.
• Salary reductions. Sometimes employers fail to give raises to employees who have angered them by engaging in protected behaviors. Other times they go so far as to reduce their salaries or scheduled hours to punish them financially.

Employment-at-will status worker retaliation

Some employers erroneously think they have protection when they engage in worker retaliation because New Mexico is an “employment-at-will” state. While employment-at-will states can fire employees at any time for any reason, there are limitations. Firing a worker who engaged in a protected activity is one of them. Taking this kind of retaliatory action is a violation of federal employment law. Not only can employers who do this end up with a lawsuit filed against them by the employee, but they also can face fines and other penal actions from the federal government.

How to prove worker retaliation in New Mexico

The burden of proof falls on the employee in worker retaliation cases in New Mexico. There must be clear-cut evidence that an employer engaged in this illegal behavior to win a worker retaliation civil lawsuit. Working with attorneys who understand worker rights in New Mexico is the best move employees can make if they suspect they are victims of worker retaliation. Reach out to Cameron and Russell to schedule your complimentary case review today.