Can Your Boss Retaliate Against You for Standing Up for Yourself Without Violating the Law?

The short answer in New York is: maybe.

To retaliate literally means to respond or reply. Thus, many actions against employees are a response to action(s) that an employee has taken. It is not illegal to take an adverse action against an employee in response to something that employee may have done that the employer disagreed with.

However, under federal, state and local law, your employer cannot retaliate against you for engaging in protected activity – – meaning that your employer cannot take an adverse employment action against you for complaining about being discriminated against or reporting an actual violation of law that affects the health and safety of the public; or complaining about the quality of patient care (for employees of a medical facility).

With respect to discrimination, federal Equal Employment Opportunity laws, including, but not limited to, Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, each prohibit an employer from taking adverse action against an employee because the employee complained about being discriminated against – – i.e. being treated differently in the terms and conditions of their employment because of a protected characteristic under the statute – – or participated in an investigation regarding a complaint of discrimination. Likewise, on the state and local levels, the New York State Human Rights Law and New York City Human Rights Law, also prohibit employers from retaliating against employees for engaging in protected activity.

Under New York’s whistleblower law, New York Labor Law (“NYLL”) § 740, employees are protected from retaliatory personnel actions by their employer for reporting or threatening to report a policy or practice of the employer that is in violation of the law which creates or presents a substantial and specific danger to the public health or safety. However, for NYLL § 740 protections to apply, an employee must have proof of an actual violation of the law and this violation must further pose a substantial danger to public health or safety.

New York’s healthcare whistleblower law, NYLL § 741, specifically protects employees in the healthcare industry from retaliatory personnel actions. Under NYLL § 741, employers cannot retaliate against a healthcare employee if that employee discloses to a supervisor or public body a policy or practice of the employer that the employee in good faith reasonably believes constitutes improper quality of patient care. The alleged improper quality of patient care must be any practice, action or failure to act which violates any law, rule or regulation that presents a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient.

What constitutes protected activity under the above statutes?

Protected activity includes opposing discrimination or unlawful conduct by making a good faith complaint regarding a violation of the law, or by participating in any manner in an investigation, proceeding, or hearing regarding such a complaint. An employee can engage in protected activity by: complaining about, opposing, or protesting perceived discrimination against themselves or other employees; filing a charge of discrimination with an administrative agency, such as the Equal Employment Opportunity Commission or New York State Division of Human Rights; participating in an investigation of a complaint by providing information regarding events you witnessed; reporting or disclosing to a supervisor or public body an actual violation of the law; or refusing to engage in conduct that the employee reasonably believes is unlawful.

Did your employer take adverse action?

To qualify as an adverse action for purposes of retaliation, the action your employer takes must be “materially adverse” such that the action is likely to dissuade a reasonable worker from making or supporting a complaint of discrimination or unlawful conduct. Actions such as termination, demotion or harassment are typically considered adverse actions under the law.

Further, to constitute unlawful retaliation, the employer’s adverse action must be connected to the protected action. Generally, this means that the person who made the decision to subject an employee to the adverse action must know about the employee’s protected activity.

By way of example, the following could be considered instances of unlawful retaliation:

• A female employee complains to Human Resources that her male coworkers are given preferential work assignments, which allow them to earn substantially more money. The female employee is then demoted to a lower position where she earns less money.
• A Hispanic employee complains to the owner of a company that the Hispanic is being harassed because of his ethnicity by non-Hispanic coworkers. The owner then terminates the Hispanic employee.

In contrast, the following is likely not an instance of unlawful retaliation:

• A part-time employee complains to their supervisor the employee’s schedule change interferes with college classes that the employee is taking. The employee is then scheduled to work less shifts which do not interfere with the employee’s class schedule.

If you believe you may have been a victim of unlawful retaliation, please contact Borrelli & Associates, P.L.L.C. today for a consultation.