The Nature of Retaliation
People may differ as to which of our rights they value, but if we value any right at all, we are offended by retaliation against us for attempting to enforce that right and offended more so when that retaliation is a wrongful termination. As a result, the right to be free from retaliation is valued by all. This consensus gives retaliation claims, particularly wrongful termination claims, a greater opportunity for damage awards. Therefore, a company may face far greater costs for retaliation than it will for the underlying violation itself.
A company accused of violating a law, whether by charge of discrimination or otherwise, is wise not to permit retaliation against the employee making the claim. Companies who focus on their financial bottom lines will usually treat a complaining employee with care, with significant efforts to avoid wrongful termination. In such companies an employee who is careful to meet all expectations of his employer will be unlikely to suffer retaliation, and even if he does, it is unlikely to be in the form of a wrongful termination. An employee who faces retaliation in the form of wrongful termination brings a very strong claim.
Wrongful Termination as a Form of Retaliation
As noted on the main discrimination page, wrongful termination can be a kind of discrimination or retaliation. When it comes to retaliation claims, the most common form of retaliation is wrongful termination. Because some laws like the FMLA are filed directly in Federal Court, retaliation and wrongful termination claims brought under those laws are not filed with the EEOC. But because retaliation and retaliatory wrongful termination are forms of discrimination they are subject to very similar rules and proven by the same methods: direct and indirect. (See Discrimination) .The only difference is that in the first step of the indirect method, the employee need show three things: 1) a basis for the retaliation, that is that the employee took some action such as filing a case against the company; 2) an adverse act such as wrongful termination; and 3) some causal connection which might be something as simple as the fact that the wrongful termination happened right after the company became aware of the complaint. While the FMLA and overtime laws do not allow emotional distress damages, and they allow liquidated damages instead of punitive damages (See Overtime and FMLA) the anti-retaliation provisions of those laws do provide for emotional distress and punitive damages; they treat retaliation and wrongful termination in the same way as discrimination. This is an important distinction because wrongful termination can result in a great deal of emotional distress, both from the wrongful termination itself and from the fact that someone is out of work, while the underlying overtime or FMLA violation does not (and the law does not allow for recovery for emotional distress). Also, in some situations, particularly where wrongful termination is involved, punitive damages can be far greater than the liquidated damage value of the underlying case.
This site discusses many laws that an employment lawyer uses including overtime laws, the FMLA, and discrimination laws. Some kinds of claims do not require an employment lawyer. For example, someone who handles worker's compensation claims is probably not an employment lawyer. But a wrongful termination in retaliation for filing a worker's compensation claim is a case for an employment lawyer. Therefore, anytime you have made any claim against your employer and faced retaliation or wrongful termination as a result, you should consult an employment lawyer.
To Avoid Retaliation and Wrongful Termination
If you feel you have been subjected to discrimination and are afraid to pursue your case for fear of retaliation or wrongful termination or if you are afraid that you may suffer or have already suffered retaliation, you need an employment lawyer to advise you on your best course of action. Just because you speak to a lawyer, does not mean that you must file a case. And since that consultation is entirely confidential, if you decide not to pursue a case no one needs to know that you spoke to an employment lawyer at all.
No matter what kind of employment case you have, the fear of retaliation (even if a wrongful termination is unlikely) has a tendency to hover in your mind. The fact is that everyone is afraid of wrongful termination. At Maduff & Maduff you will find attorneys who understand your fears and your goals. Call us to schedule a confidential consultation.