If you complained about your employer breaking the law and you were fired, then you might be a victim of retaliation. If you were fired, demoted, suspended, threatened, harassed or otherwise discriminated against after you tried to stand up for your rights in the workplace, El-Hag & Associates, P.C can help you.
Don’t be afraid to stand up for your rights!
Westchester Labor & Employment Lawyer- Panel Answers Question on Retaliation
What is Retaliation?
Retaliation is when your employer fires, demotes, suspends, threatens, harasses or otherwise discriminates against you because you engaged in some form of protected activity. Many of the employment laws that protect employees have specific provisions that protect employees from employer retaliation. For example:
- Unpaid wage & overtime lawsuits. Under both the Federal & New York State law, it is unlawful for your employer to terminate you because you complained about not being paid correctly. In fact, even if you were being paid correctly but you reasonably believed that you were not being paid correctly, and you complained to your employer, then you are protected by the retaliation protections of the wage and hour laws.
- Discrimination. Under both the Federal and New York State discrimination laws, it is unlawful for your employer to terminate you because you complained about discrimination in the workplace or because you filed a charge of discrimination.
- Union formation. Under the National Labor Relations Act, it is unlawful for your employer to retaliate against you for engaging in protected concerted activity. The National Labor Relations Board has exclusive jurisdiction over prosecuting unfair labor practice charges, which is what a retaliation charge would constitute.
- Family and Medical Leave Act. Under the Family & Medical Leave Act (“FMLA”), you are protected from retaliation for your utilization of the FMLA protections, for lodging a complaint about FMLA violations, or if you are complaining about your coworkers’ rights being violated under the FMLA.
If you believe you were a victim of retaliation.
What is Whistle-blowing?
Whistle-blowing is separated from retaliation because there are specific laws under which you can file a whistle-blower claim. Under the New York State Labor Law there are separate whistle-blower protections in addition to the retaliation provisions listed above. The New York Whistle-Blower laws are contained under NY. Lab. Law. 740 and NY. Lab. Law 741.
- Health Care Worker Protection. New York Labor Law Section 741 specifically protects healthcare workers who lodge complaints against their employer for the mistreatment of patients.
- Non Health Care Worker Protection. New York Labor Law Section 740 protects non-healthcare workers who lodge complaints against their employer.
- Federal Law. Under the Federal Law, there are numerous laws and regulations under which you have protections for reporting your employer. A good resource to provide you with an overview can be found here- https://fas.org/sgp/crs/misc/R42727.pdf
What can I win if I sue my employer for retaliation or file a whistle-blower lawsuit?
Westchester New York Labor & Employment Lawyer- Do not be afraid of employer retailation
Different Laws provide different levels of remedies for retaliation. For example, some laws provide for punitive damages some do not. However, the general categories of damages available to employees who win whistle blower or retaliation lawsuits are:
1) Lost wages and benefits. Generally, you must be made whole for the losses you suffered because of your employer’s discriminatory actions. Reimbursement for lost pay and benefits is one of the available categories of damages.
However, the reimbursement of lost wages and benefits is bittersweet because the law deducts any other income that you receive. So generally, unemployment benefits you received and income from new employment will be deducted from any award of lost pay and benefits. Moreover, if you secure a new job that is comparable to the job you lost, you do not get any more back pay and benefits.
** You have a legal obligation to find a new job and limit your lost pay and benefits. If you do not take steps to find a new job, you can get no back pay whatsoever!! This is known as “mitigation of damages”. It seems very unfair that your boss who discriminated against you gets to benefit from you finding new work, but that’s the way the law goes.
2) Costs of finding a new job or remedying the discriminatory conduct. Because the law is designed to make you whole for your losses, you are entitled to recover any costs that you incurred in trying to recover from the discriminatory act. So your travel expenses that you incurred driving to job interviews or necessary and reasonable relocation costs are an example of the type of costs you can recover.
3) Pain & Suffering. You might be entitled to pain and suffering damages. No one can tell you how much you might receive from a pain and suffering award. But there are two factors that you can look at to determine whether you can receive a smaller or larger award:
A) How repulsive and persistent was the discriminatory conduct? The more repulsive the action and the longer you were exposed to them, generally the greater the possible pain and suffering award.
B) The significance of the impact the discriminatory act had on you. Even if the retaliatory action taken against you was bad, you won’t be entitled to much in pain and suffering if you did not have any pain and suffering. But if you experienced a lot of pain and suffering that you can prove, then the award goes up. What shows whether or not you incurred pain and suffering:
- Did you require medical treatment on an ongoing basis;
- Are you taking medication to deal with the mental pain;
- Did you experience sleeplessness;
- Could you not eat and lost weight;
- Did you withdraw from family and friends because you were depressed;
- Did you suffer from panic attacks;
4) Punitive Damages. Punitive damages are designed to punish the wrongdoer. You must be able to show reckless disregard for the law or malicious conduct. It is a very high standard and not awarded often.
5) Reinstatement. You can be reinstated to your position or be placed into the position that you would have been in had the discriminatory conduct had no occurred.
6) Front pay. If reinstatement is not possible, a court may award reasonable front pay. This is the amount of money that you would have received had you continued to work for the employer.
If you believe you were a victim of retaliation.