Should I worry about getting fired if I complain about my boss or co-worker? The answer depends on what you are complaining about. Florida law prohibits firing a worker in retaliation for the worker’s engagement in protected activity. But not all complaints are protected.
So, what is protected activity? And if I am fired, do I have a case for workplace retaliation?
Generally speaking, protected activity complaints are those in which a worker objects to an employer’s violation of a law, rule, or regulation.
For example, complaining about discrimination is a protected activity. Complaining about unpaid overtime is a protected activity. A complaint about workplace harassment is a protected activity. However, complaining about your boss’s poor management style or being a jerk is not a protected activity because that conduct is not illegal.
Suppose you complain to HR about an illegal activity of your boss or co-worker, and you are fired. In that case, you may have a wrongful termination case for workplace retaliation.
First, for a complaint to be considered protected conduct, it should mention illegality at a minimum enough to put your employer and/or HR on notice of a violation of the law. It is not enough for the worker to merely complain about a specific policy or behavior of co-workers and depend on the employer to infer that discrimination or harassment occurred. In other words, a worker’s complaint to HR must clearly put an employer on notice of a violation of the law. Be brutally honest in making your complaint. This is no time to sugarcoat the details of your complaint. Leave no doubt about what the employer does that is against the law.
Also, send copies of the complaint to all decision-makers in a time/date stamped way. I suggest sending an email or a certified letter with a return receipt. People like your supervisor, the CEO, the head of HR, and anyone else in management who would be involved in deciding to fire, demote, or transfer.
In my practice, I’ve seen cases for workplace retaliation get dismissed because the decision-makers claimed they were unaware of the complaints filed with HR. The worker couldn’t prove the decision-makers ever received copies of the complaint, so when they decided to fire the worker, the decision-makers could claim they couldn’t have retaliated because they weren’t aware of the complaint in the first place. In practice, they likely knew about the complaint, especially if the termination, demotion, or transfer was came out of nowhere. It’s a bush-league argument that decision-makers use, but it is effective.
To make out a case of retaliation, a worker must show:
Retaliation cases are often profitable because they are mostly fact-based, and there is usually little dispute. So, as long as your complaint clearly describes the illegal activity, and as a result, you suffer some adverse employment action like a termination, and there is no other non-retaliatory reason for the adverse action, you can easily win a retaliation case.
As mentioned above, a worker engages in protected activity when the worker opposes an employment practice that they have a good faith, basis to believe is unlawful.
A worker is not required to prove that the alleged conduct was unlawful, as such opposed conduct need only be “close enough” to illegal to support the objectively reasonable belief that the employer engaged in unlawful employment practices. However, where binding precedent squarely holds that particular conduct is not an unlawful employment practice, and no decision of the Court of Appeals or of the Supreme Court has called that case into question or undermined its analysis, an employee’s contrary belief that the practice is illegal is unreasonable, preventing relief on a retaliation claim.
A worker must suffer an adverse employment action to win a retaliation claim. Action sustained by a worker is materially adverse if it might have discouraged a reasonable worker from making or supporting a discrimination complaint.
Adverse employment actions consist of things that affect continued employment or pay — things like terminations, demotions, suspensions without pay, and pay raises or cuts. Trivial slights, however, are not actionable.
For example, a reduction in an employee’s hours provides sufficient evidence of an adverse action supporting a retaliation claim because doing so could deter an average worker from making or supporting a charge of discrimination, mainly where reduced hours translate to reduced wages.
Poor performance evaluation that directly results in rejection of a pay raise of importance clearly affects employee’s compensation and thus constitutes adverse employment action. For example, an African-American employee suffers an adverse employment action in the form of an unfavorable performance review that directly affected her eligibility for a merit pay increase and that was received after she had complained of racial discrimination; a negative review clearly might deter a reasonable employee from pushing pending charge of discrimination or making new one.
Additionally, a transfer to a less appealing position in terms of pay or eligibility for pay increases, equivalent to a demotion, qualifies as adverse employment action.
To win a retaliation claim, a worker must prove a causal connection between the protected activity (i.e., the complaint) and the adverse employment action.
A worker asserting retaliation related to an employment decision may satisfy their burden of establishing a causal connection between the materially adverse action and statutorily protected activity by showing close temporal proximity between the statutorily protected activity and the materially adverse action. Temporal proximity is a fancy phrase for “close in time.”
Mere closeness in time between the protected activity and adverse employment action, without more, must be very close in time to satisfy the plaintiff’s burden of establishing a causal connection between the materially adverse action and statutorily protected activity, as required to support a retaliation claim.
Adverse action within days of the worker’s protected activity complaint can be evidence of a connection between the adverse action and complaint, as required to support retaliation action. For example, after seven (7) days of complaining to HR about a supervisor’s racially charged comments, the complaining workers’ hours are reduced; this would be considered close temporal proximity to show a causation link between the protected activity and the adverse action. However, a three (3) to four (4) month time gap cannot satisfy the worker’s burden of establishing a connection between adverse action and protected activity.