Proving Retaliatory Discharge

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What is considered to be Retaliatory Discharge?

Retaliatory discharge in the workplace refers to an employer punishing an employee for their actions by terminating them. The term almost always indicates that the employee was terminated for reporting the employer’s wrongful conduct. According to state and Federal laws, retaliatory discharge is illegal and is considered to be a type of wrongful termination.
 
Therefore, employers are not allowed to terminate workers for conduct that is “protected” or lawful. Termination must occur only for valid reasons, such as poor work performance or illegal employee activity. “Retaliatory” means something similar to “revenge”, in that the employer is firing the employee in order to get even with them.

What are the Elements for Proving Retaliatory Discharge?

In order to succeed on a retaliatory discharge claim, the employee must prove three elements:
 

What is a Protected Activity?

There are basically two forms of protected activities. If the employer has fired the employee because they engaged in the following activities, it could be grounds for a retaliatory discharge lawsuit:
 
Protected activities cover all employees, including former employees who have made reports about the employer. Also, the employee need not be part of a protected class (i.e., based on race, religion, sex, etc.). Even if they do not belong to the class of workers that was discriminated against, they cannot be fired for filing complaints if they have witnessed discrimination in the workplace.

What Kind of Evidence is Needed to Prove It?

If you are filing a retaliatory discharge lawsuit, you will need to submit evidence which shows a connection between the firing and the protected activity. In other words, the evidence must show that the employer fired you because you engaged in the protected activity. There are two types of evidence:
 
Finally, you should know that it may be very difficult to prove retaliatory discharge if your employer also has a legitimate reason for firing you. For example, if you have a poor attendance record, your employer might cite this rather than retaliation as their reason for firing you. 
 
Also, if the employer is able to prove that you were not engaged in protected activity, or if there is no connection between the protected activity and the termination, it could have negative effects on your legal claim.

Do I Need a Lawyer to Prove Retaliatory Discharge?

If you feel that you have been a victim of retaliatory discharge, you should contact a lawyer immediately to find out your options. An employment attorney can help you prepare your claim, and can determine whether you have a valid claim according to workplace statutes. 

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Last Modified: 12-08-2010 03:51 PM PST

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