Is Your Layoff Really Retaliation?

What if what looks like a standard layoff is really hiding an illegal act, such as retaliation, against an employee? Retaliation may be hard to pin down, but it may be actionable if all of the facts line up. Basically, a retaliatory firing is one that occurs because the employee has complained of discrimination or certain other illegal actions by the employer, or because the employee has supported a fellow worker who has made such a complaint. The complaint can be with a federal or state agency or within the company itself.

Most retaliatory acts fall short of actual firing, but, with the current economy, there may be more pressure on employers to lay people off, which usually means that the perceived weakest links will be cut first. So someone who is being retaliated against in subtle ways in the work place can suddenly be on the cutting room floor, a victim of a retaliatory act that can made to look like a bona fide business decision.

There are a number of different laws that make various kinds of retaliatory actions illegal. The trick is to know which ones are out there and which ones may apply to any given situation. An employment lawyer can investigate any individual situation to determine if any action can be taken.

Some common examples of employees who are protected against retaliation are those who ask for accommodation under the Americans With Disabilities Act, who protest discrimination, or who take advantage of the Family and Medical Leave Act. And, of course, there is always the whistleblower section of the Sarbanes-Oxley Act (link goes to a very long article), which protects employees who accuse publicly-traded corporate employers of securities fraud or other kinds of fraudulent practices.

Also remember that the underlying act doesn’t have to ever be found to be illegal for the company to engage in retaliation, so long as the complaint is made in good faith.

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