Most employees believe that when they make a report to their company’s human resource department, that report is going to be confidential and they cannot be subjected to retaliation due to those complaints. But this isn’t necessarily the case in every instance. Sometimes, employees can actually face retaliation where their complaints are not considered “protected activities” under the law (for example issuing a report of sexual harassment or some type of hostile work environment is a protected activity, as a matter of law). This raises the question “Is my HR complaint legally protected?” At Ricotta and Marks, we focus on protecting the rights of our clients and we strive to protect them from illegal employment retaliation when they report something to human resources.
When is My HR Complaint Legally Protected?
Not all complaints made to a human resource department are going to be legally protected. Certain things have to occur before legal protections can be put in place. In order to be protected from retaliation in response to an HR complaint, an employee’s report to HR must relate to “protected activity” under either federal law, New York State law, or the laws of NYC. For example, the employee’s complaint to HR has to allege some type of discrimination that is protected under the law, i.e., race, sex, religion, national origin, pregnancy status, gender identity, or other protected characteristics. When making a complaint to HR, the employee does not need to use specific language to receive legal protection. Using the HR complaint process is protected as long as the employee was acting on a reasonable belief that something in the workplace may violate the laws, even if he or she did not use legal terminology to describe it.
Other types of complaint allegations may also protect the employee from employment retaliation such as safety code violations, violations of environmental laws or local ordinances, workplace safety violations, safety risks to customers or the general public, and customer or commercial fraud including violations of securities or tax laws or regulations, and other unlawful activity.
Examples of Workplace Retaliation
There are countless ways for an employer to retaliate against an employee who made a valid complaint of workplace discrimination to the HR department. Here are some examples:
- Filing or being a witness in an EEOC charge, complaint, investigation, or lawsuit,
- Communicating with a supervisor or manager about employment discrimination, including harassment,
- Answering questions during an employer investigation of alleged harassment,
- Refusing to follow orders that would result in discrimination,
- Resisting sexual advances, or intervening to protect others,
- Requesting accommodation of a disability or for a religious practice, and
- Asking managers or co-workers about salary information to uncover potentially discriminatory wages.
The above is not an exhaustive list of examples of workplace retaliation and many cases can be some variation of what’s listed above.
What Can an Employee Do About Retaliation
The most important thing to do is to contact an experienced employment discrimination and employment retaliation lawyer. This is the best way to get your questions answered correctly and with compassion. The lawyers at Ricotta and Marks understand that going through something like this can be very stressful and full of anxiety. We are here to help you through this process. We strive to fully investigate every claim to make sure our clients’ rights are protected. Do not hesitate to contact us immediately. Help is only a phone call away.