UNLAWFUL RETALIATION

What is unlawful employment retaliation in Minnesota?

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Unlawful employment retaliation occurs when an employer takes adverse action against an employee or job applicant in response to the employee engaging in legally protected activities. Such conduct is prohibited under various state and federal employment laws, including but not limited to:

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• Title VII of the Civil Rights Act

• The Fair Labor Standards Act

• The National Labor Relations Act

• The Family Medical Leave Act

• The Employee Retirement Income Security Act

• The Americans with Disabilities Act

• The Age Discrimination in Employment Act

• The Minnesota Human Rights Act (MHRA)

• The Minnesota Whistleblower Act

• The Minnesota Fair Labor Standards Act

• The Minnesota Workers' Compensation Act

• The Wisconsin Fair Employment Act

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What is protected activity?

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Protected activity under state and federal anti-retaliation laws typically falls into a few categories. One way of loosely categorizing the protected conduct is in three groups:  utilization, opposition, and participation.

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1.  Utilization. This involves an employee taking advantage of legal protections or entitlements. Examples include:

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• Taking legally-protected family or medical leave.

• Requesting reasonable accommodation for a disability or for religious practices.

• Utilizing workers' compensation and/or healthcare insurance. 

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2.  Opposition. This involves resisting or speaking out against unlawful employment practices, such as:

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• Complaining or expressing concern about suspected discrimination or harassment to a supervisor, manager, or human resources representative.

• Complaining about wage and hour violations.

• Opposing practices that an employee reasonably believes to be discriminatory, such as refusing to follow orders that would result in discrimination.

• Filing a complaint or a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), the Minnesota Department of Human Rights (MDHR), the U.S. Department of Labor (DOL), the Minnesota Department of Labor and Industry (MN DOLI), and other similar agencies.

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3.  Participation. This involves taking part in a broader effort or legal proceeding. Examples include:​

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• Cooperating with an investigation into allegations of discrimination or harassment.

• Testifying or providing evidence in an investigation or lawsuit related to alleged discriminatory practices.

• Discussing or disclosing information about wages, hours, or working conditions.

• Participating in a strike or other form of concerted activity for mutual aid or protection.​

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Importantly, for an activity to be protected, an employee does not need to be correct that a violation occurred. Rather, they need to have a good faith, reasonable belief that the practices they oppose or participate in investigating are unlawful. It's also crucial to note that not all opposition to unfair practices is protected. The manner of opposition must be reasonable and not excessively disruptive to the workplace.

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Remember that while this answer provides a general understanding, the specifics can vary depending on the law in question. For instance, whistleblower laws protect employees who report a variety of illegal activities not related to discrimination. Employees and employers should always consult with an attorney or relevant agency to understand the exact protections in a given situation.

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What kind of adverse action is illegal? 

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What sort of employment actions constitute unlawful retaliatory conduct can vary widely depending on the specific law and circumstances, but generally involves any adverse action that an employer takes against an employee because the employee engaged in a protected activity. The definition of "adverse action" can be broad and encompasses any action that could deter a reasonable person from participating in protected activity. Here are some examples:

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• Termination or Demotion: If an employee reports a case of sexual harassment or discrimination at the workplace and is subsequently fired or demoted without a valid reason, this could be seen as unlawful retaliation.

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• Negative Job Evaluation: For instance, if an employee files a complaint about unsafe working conditions, and their next performance review is unfairly poor, without any change in their job performance, this may be considered retaliation.

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• Harassment: This could include, for example, an employer or supervisor making an employee's work environment hostile or uncomfortable after the employee has engaged in a protected activity, such as filing a discrimination complaint or participating in a workplace investigation.

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• Change in Job Responsibilities: If an employee complains about wage theft, and their job duties are suddenly and significantly altered to less desirable tasks, this may be retaliatory.

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• Denial of Promotion: For example, if an employee testifies in a coworker's sexual harassment claim and is subsequently passed over for a promotion in favor of a less-qualified candidate, this could be retaliation.

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• Reduced Pay or Hours: If an employee participates in a union organizing effort and the employer subsequently reduces their hours or pay, this could be considered retaliation.

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• Exclusion: If after an employee has reported a case of discrimination they are excluded from meetings, training opportunities, or social functions that they were previously invited to, it could be seen as a form of retaliation.

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• Increased Scrutiny: If an employer starts excessively monitoring an employee’s work or sets unrealistic targets after the employee has engaged in a protected activity, this could be seen as retaliatory.

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​What remedies are there for illegal employment retaliation?

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If an employee believes they have been the victim of unlawful retaliation, they have several potential remedies. The goal of these remedies is to restore the employee to the position they would have been in had the retaliation not occurred. Here are some possibilities:​

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• Reinstatement: If the employee was wrongfully terminated or demoted, a court can order the employer to reinstate the employee to their former position or a similar one.

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• Back Pay: This is the lost earnings resulting from the retaliatory action, such as if the employee was fired or had their hours cut.

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• Front Pay: This is the amount of money an employee would have earned in the future if they were reinstated to their position.

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• Compensatory Damages: These are damages intended to compensate for out-of-pocket expenses caused by the retaliation, such as job search expenses, medical expenses, or relocation costs, as well as emotional distress.

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• Punitive Damages: These damages are awarded to punish the employer for particularly egregious behavior. They are only available in certain cases, such as under federal law if the employer is proven to have acted with malice or reckless indifference.

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• Attorneys' Fees and Costs: If the employee wins the case, the employer may be ordered to pay the employee's legal fees and court costs.

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• Policy Changes: The employer may be required to change their policies or practices to prevent future retaliation.

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• Training: The employer may be required to provide training to its employees about their rights and obligations under anti-retaliation laws.

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If an employee believes they have been retaliated against, they should consider taking the following steps:

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• Document the retaliation: Keep a detailed record of the retaliatory actions, including dates, times, locations, people involved, and any witnesses.

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• Report the retaliation: Notify a supervisor, HR representative, or another appropriate person in the company. Follow the company's procedure for reporting, and keep a record of these reports.

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• Consult with an attorney: Employment law can be complex, and it's important to get advice from someone who understands the laws and can provide guidance based on the specific situation.

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• File a complaint: If the retaliation is not resolved internally, the employee may need to file a complaint with a state or federal agency, such as the Equal Employment Opportunity Commission (EEOC) or the Minnesota Department of Human Rights (MDHR). The employee must sometimes file this complaint before they can file a lawsuit.

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Remember, these steps can vary depending on the situation and jurisdiction, so it's crucial to consult with an employment attorney for advice tailored to the specific circumstances.​