More employees are worried about workplace retaliation due to the COVID-19 and BLM protests across the country. Some are concerned with losing their jobs in their reluctance to return to an unsafe workplace. Others are worried that speaking out about racism could cause discrimination and workplace bullying. Employers are wise to understand how to protect employees and provide resources if workplace retaliation is suspected.
With heightened awareness of discrimination due to COVID-19 or the Black Lives Matter protests, employers need to know how to protect employees from workplace retaliation.
Other forms of workplace retaliation could be pay cuts, demotions or unwillingness to promote, unexpected negative performance reviews, cutting hours, being moved to less desirable projects or even being fired. Often, employees face workplace retaliation from reporting sexual or other harassment, discrimination or other ways of being treated unfairly in the workplace.
Some employees are afraid of retaliation if they refuse to return to work due to concerns about the virus. If several coworkers feel the same or feel the employer isn't providing safety measures, they can approach the employer with their concerns. The employees could also file a complaint with the federal Occupational Health and Safety Administration (OSHA) since employers can't retaliate against employees for reporting to OSHA. If an employee's health condition puts them more at risk when returning to work, they may be protected under the Americans with Disabilities Act (ADA). Otherwise, if the employee is unable to return to work due to childcare challenges (such as an unopen daycare), they may qualify for paid family leave.
National Law Review is reporting that more employer lawsuits and claims are cropping up in response to the lack of COVID-19 safety precautions in the workplace, discrimination and workplace retaliation. Some states, such as Colorado, have passed legislation to protect employees from retaliation due to unsafe working conditions related to COVID-19.
Speaking out Against Racism Retaliation
Also notable are the concerns about speaking out against racism or participating in Black Lives Matter protests. One concern is if employees speak out against their own employers or otherwise shed light on racism in the workplace. While many employers may have social media policies that urge employees not to share information that could be harmful to the business, individuals may be protected when speaking out or "whistleblowing" complaints against illegal activity by their employers. Complaining about harassment or discrimination is a "protected activity" according to the EEOC Enforcement Guidance on Retaliation and Related Issues. Some employers must also consider if arrests for protesting can be used against an applicant during a background check.
Employers and employees are advised to consider federal and state laws, as well as the employment contract, to determine if disparaging a business is protected or could land the employee in court for defamation.
In general, the EEOC and other federal regulations can protect employees from workplace retaliation. Human resources can also establish policies against discrimination and retaliatory actions, including ways to report complaints and how to document any actions that are harmful after the fact. Most of the time, the onus is on employees to establish a link and pattern of retaliation. HR can work with the employee as well as their employment attorney to ensure the case is handled with care.