What Are Protected Activities Under Wrongful Termination Law?

A broad range of employee activities are protected from employer retaliation

By Andra DelMonico, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on June 14, 2024 Featuring practical insights from contributing attorney Heather Hardinger

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Employees should feel safe when they go to work. They shouldn’t have to worry about getting physically injured, being discriminated against, or being pressured to be complicit in illegal activity. Employees should also feel safe seeking medical treatment or caring for the family without fear of losing their jobs.

Protected activities are actions that employees can take where an employer cannot retaliate. When an employer does take adverse action in response, the employee has a right to file a claim under employment law.

The Retaliation Exception to At-Will Employment

An at-will employment arrangement means there is no contract between the employer and the employee. This is a standard type of employment in the United States. All states except Montana recognize at-will employment. The employee or the employer can end the working relationship at any time, for almost any reason. The reason for termination by the employer cannot violate any state or federal laws.

An exception for at-will employment is adverse action in response to an employee performing a protected activity.

What Are Protected Activities?

An employer cannot retaliate and punish the employee with termination or some other adverse action when that employee has taken a protected activity. There are four general categories of protected activities that employees can engage in:

  1. Reporting something with the reasonable belief that they know of illegal activity
  2. Refusing to perform an activity that a reasonable person would know is illegal
  3. Participating in a protected reporting and investigation process
  4. Notifying the employer of a medical condition or disability

Reporting Workplace Discrimination or Harassment

The Equal Employment Opportunity Commission (EEOC) protects employees when reporting workplace discrimination or harassment. “You may consider filing a charge of discrimination with the EEOC and then pursuing your claims through litigation,” says Heather Hardinger, an employment litigation attorney at The Meyers Law Firm in Kansas City, Missouri.

These actions could vary significantly, from sexual harassment to treating someone differently because of their sexual orientation or national origin. Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their race, color, religion, sex, and national origin. Anti-discrimination laws like the Age Discrimination in Employment Act (ADEA) also protect employees from adverse action because they are in a protected status category.

If you are being discriminated against, harassed, or retaliated against, review your company handbook or employer policies to determine whether your manager, human resources, or another person is designated to accept complaints. Then, make your complaint or report of discrimination in writing and keep a copy for yourself. If you believe you are experiencing retaliation after reporting discrimination, make a new timely written complaint in writing and remain engaged in any investigative process.

Heather Hardinger

Requesting Reasonable Accommodations

Under the Americans with Disabilities Act (ADA), disabled employees have the right to ask for reasonable accommodations. An employer must provide accommodations to enable employees to perform their duties effectively. This could include getting or modifying equipment, modifying the work schedule, adjusting exams or tools, or making the work environment accessible.

If an employee refuses to do these things, it can be a violation of the ADA. However, there could also be discrimination or wrongful termination even if the employer makes the necessary accommodations.

Reporting Unsafe Working Conditions

Employees who report unsafe working conditions or policies report their suspicions to the Occupational Safety and Health Administration (OSHA). This federal agency oversees a wide range of industries. Employers cannot retaliate against an employee who reports an OSHA violation.

Filing a Workers’ Compensation Claim

If an employee becomes injured while performing their job, they may be able to file a workers’ compensation claim. This is a type of employment health insurance that some companies are required to provide to their employees. However, some companies do not want an employee to file a claim, as the insurance cost would increase. Employer retaliation could include demoting employees, moving them to an undesirable working environment, creating a hostile work environment, or constructive termination.

Hardinger explains how an employee would show they experienced constructive termination. “In Missouri, an employee would have to show that the employer intentionally rendered their working conditions intolerable based on their protected class or based on retaliation. The standard is that a reasonable person would consider the conditions intolerable.”

While these are the requirements for Missouri, each state can have its own requirements. Speaking with an employment attorney who practices in your jurisdiction can help you understand the requirements that apply to your wrongful termination claim.

Taking Family and Medical Leave

Under the Family and Medical Leave Act (FMLA), qualifying employees are entitled to up to 12 weeks of unpaid, job-protected leave per year. This protection is given because it is in the best public interest that employees feel safe taking care of their families. Otherwise, people would risk their livelihood because they have a medical issue at home. Companies cannot take adverse employment action because an employee chose to take unpaid medical leave.

Filing a Complaint About Wage and Hour Violations

The Equal Pay Act protects employees of all sexes and ensures that all individuals receive equal compensation for doing the same or substantially similar jobs. The act applies to a broad range of compensation types, including salary, overtime, bonuses, life insurance, holiday pay, vacation benefits, and reimbursements. Executive Order 11246 of 1965 took this protection further, applying to U.S. government contractors. Employees have the right to ask about, discuss, and disclose their compensation. Employers must take a non-retaliatory approach.

Whistleblowing

If an employee reasonably suspects or knows the company is committing illegal activity or defrauding the government, they can file a whistleblower’s claim. The complaint must be in good faith to be protected. The company being reported cannot retaliate with demotion or termination.

Participating in an Investigation

Once an employee files a complaint, an investigation will likely follow to determine the validity of the complaint. This investigation will require the participation of the employee and probably other employees. As long as the employee is acting with reasonable belief that the employer is violating the law, their participation in that investigation is protected. This ensures the employer is held accountable for its actions rather than firing all employees who could provide damaging information to the investigation.

Union Activities

Some industries have unions that actively protect employee rights. The union advocates on behalf of the employees with the employer and industry regulators. To prevent companies from pushing unions out, employees can participate in several protected activities related to their union membership.

What to Do if You Are Wrongfully Terminated for Engaging in a Protected Activity

If you believe your legal rights have been violated, the next step is to speak with an employment lawyer. Explain the circumstances surrounding the wrongful termination and why you believe it directly resulted from your participation in a protected activity. If the lawyer agrees that you have a viable retaliation claim, they can help you pursue financial compensation or the reinstatement of your employment.

It is advisable to keep documentation of any evaluations or unlawful activity that you witness. This can help you connect your termination with your claimed discriminatory reasons. It can also help you establish different treatment than that of your co-workers.

Hardinger explains there are several actions an employee can take when they suspect that they are about to be wrongfully terminated. “If you are being discriminated against, harassed, or retaliated against, review your company handbook or employer policies to determine whether your manager, human resources, or another person is designated to accept complaints. Then, make your complaint or report of discrimination in writing and keep a copy for yourself. If you believe you are experiencing retaliation after reporting discrimination, make a new timely written complaint in writing and remain engaged in any investigative process.”

Speak With an Employment Attorney

If you feel that you have been wrongfully terminated, speak with an employment law attorney. Hiring a lawyer with experience representing clients in employment discrimination can provide you with valuable legal advice. Your lawyer will represent you in a wrongful termination claim and pursue compensation for damages.

Visit the Super Lawyers directory to begin your search for an experienced wrongful termination lawyer.

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