Retaliation is generally understood as punishment for taking an action or making a statement. Employees often are aware that they have some protections against retaliation by their employers, but are not clear on what protections the law provides. The short answer is that the law generally protects employees from retaliation only for conduct or activities that the law specifically recognizes as protected, and not from negative reactions by employers for other reasons.
The inquiry whether a particular employee has engaged in protected conduct and the employer has acted in a way that is retaliatory is one that needs to be made on a case-by-case basis. This is so because the answer can depend upon a wide variety of factors. For that reason, any employee who has questions about whether they have been the subject of unlawful retaliation should speak to an employment attorney for advice.
Nevertheless, there are some common types of conduct that are protected by the law. Among these, for example, are opposing unlawful discrimination or participating in an investigation into or lawsuit regarding discrimination. A variety of federal and state laws against discrimination, such as Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, also prohibit retaliation against employees for opposing discrimination, including refusing to follow orders that would result in discrimination, making a complaint that they or others have experienced discrimination, or participating in an investigation or enforcement action. The federal Fair Labor Standards Act and comparable state laws also prohibit retaliation for similar activities related to the enjoyment and enforcement of wages and overtime law, as well as the Equal Pay Act.
Another area in which employee conduct is protected from retaliation is in the area of financial mismanagement and investment fraud. For example, the federal False Claims Act and corresponding state laws, as well as the Dodd-Frank Act, and Sarbanes-Oxley Act, and other laws aimed at procurement fraud and Medicare fraud provide protections from retaliation for employee conduct to enforce or stop violations of the law, such as identifying, investigating, or disclosing various forms of fraud and financial mismanagement. Some of these laws, like the False Claims Act, have complex provisions so whistleblower employees should consult an attorney familiar with these laws.
Finally, employees seeking whistleblower protections should seek advice about unique state laws. For example, New Jersey and the District of Columbia, like other jurisdictions, have statutes that protect whistleblowing by employees in the public or private sector. In addition, many states have statutes or common law rules developed in court decisions against wrongful discharge or wrongful termination that provide protections against firing or other adverse actions for employees who resist or expose violations of law or participate in processes to enforce the law.
In conclusion, while employee protections against retaliation are based on conduct or activities that are protected by some source of law, there are a variety of federal and state laws that provide those protections. Employees who believe they have experienced retaliation or who find themselves in the position of being a whistleblower should seek appropriate legal advice to learn whether and how the law might protect them.