Retaliation is commonplace in today’s workplaces. Thankfully there are several statutes that make retaliation illegal under certain circumstances.

Retaliation for opposing discrimination

The same laws which make it illegal for an employer to discriminate against an employee based upon the employee’s race, color, sex, national origin, religion, age and disability also protect employees from retaliation by an employer against an employee who tries to exercise those rights or who assists others in exercising their rights. In the past, some courts have only recognized retaliation claims when the retaliatory act was related to things such as hiring, firing, granting leave, promoting, and paying compensation. Under a recent U.S. Supreme Court decision though, an employer's actions can amount to retaliation even if they do not affect the terms and conditions of employment. The retaliation can even be harm to the employee caused by the employer outside of the workplace. A plaintiff only has to show that the action taken by the employer would have dissuaded or discouraged a reasonable employee from making or supporting a claim for discrimination. In other words, the retaliation has to cause some harm to the employee, but the harm does not have to be related to the employee’s pay or working conditions. Minor or insignificant actions that would not adversely affect a reasonable employee will not be considered illegal retaliation.

The Civil Rights Act of 1866, codified at 42 U.S.C. §1981, was recently interpreted to prohibit retaliation for opposing race discrimination.

Family Medical Leave Act

The Family Medical Leave Act was signed into law to balance the demands that employment can place on workers with the workers' own medical needs and the needs of their families. The FMLA allows employees to take up to twelve weeks of unpaid leave each year for the birth or adoption of a child, to care for a child, spouse or parent who has a serious health condition, or when the employee is unable to work because of a serious health condition. Under the FMLA, it is illegal for an employer to interfere with or deny a person's right to the unpaid leave that the FMLA allows. The FMLA also prohibits an employer from retaliating against any employee based on his or her opposition to the employer's interference with or denial of a person's right to take such leave.

Fair Labor Standards Act

The Fair Labor Standards Act, a federal law that sets out standards regarding the minimum wage, overtime pay, child labor standards and record keeping relating to full‑time and part‑time workers. The FLSA contains an anti-retaliation provision, which makes it unlawful for an employer “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” What kind of activity falls within the scope of the anti-retaliation provision is unsettled in Texas. At least one federal court sitting in Texas has ruled that an internal complaint to one’s supervisor did not fall within the scope of the statute, but many other courts located in Texas have held otherwise. Whether conduct is covered by the anti-retaliation provision of the FLSA depends on a number of factors, including the state of the law at the time of the conduct.

National Labor Relations Act

The National Labor Relations Act (NLRA) guarantees employees the right to organize, form unions and bargain collectively with their employer. Although some employers and many employees assume that the NLRA applies only to unionized workplaces, the statute applies with equal force to non union settings as long as other jurisdictional requirements are met. Section 7 of the NLRA provides that employees “shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” In turn, Section 8(a), defining unfair labor practices, makes it unlawful for an employer “to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section 7.”

First Amendment Retaliation

The First Amendment to the U.S. Constitution says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." What this means for public employees is that they cannot suffer adverse consequences for speaking out on matters of public concern. The U.S. Supreme Court first recognized that public employees could sue for retaliation in Pickering v. Board of Education, where the court articulated the balancing test that remains the law today:

"the interests of the [employee] as a citizen, in commenting on matters of public concern" must be balanced against "the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees."

Therefore, in order to establish a claim based on First Amendment retaliation, you must be able to show that your interest in speaking on a matter of public concern outweighs the government's interest in having an efficient workplace.

Sarbanes-Oxley Act

The Sarbanes-Oxley Act (SOX) was passed in 2002 in the wake of corporate scandals, such as the fall of Enron. SOX gives employees of publicly traded companies protection from retaliation when they report activity they reasonably believe to be a violation of federal securities laws, the rules of the Securities and Exchange Commission, or any federal law relating to fraud against shareholders. Those companies are also now required to adopt a business code of ethics and put in place a program to accept, review and even solicit employee reports concerning fraud and illegal conduct.

Under the SOX law, an employee who reports illegal conduct to an appropriate authority is protected from retaliation by his or her employer and cannot be fired, suspended, demoted, harassed or otherwise discriminated against because of what he or she reported. Employees who are retaliated against, may sue their employer, be reinstated to their job and recover their damages. A complaint of retaliation must be filed with the U.S. Secretary of Labor by an employee within 90 days of the date of the retaliatory conduct.

Texas Whistleblower Act

The Texas Whistleblower Act provides that a “state or local government entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” In order to make a claim under the Texas Whistleblower Act, a public employee must prove that he or she reported a violation of law, made the report in good faith, made the report to an appropriate law enforcement authority, and was suspended, terminated, or suffered other adverse personnel action, as a result of the report. Case law interpreting the Texas Whistleblower Act is rife with pitfalls for the unwary employee, including the requirement that the report be made “in good faith,” what constitutes an “appropriate law enforcement authority,” and whether an employee suffered an “adverse personnel action.” In addition, a public employee who wishes to file a whistleblower claim must file suit within 90 days after the alleged violation occurred or after the employee discovered the violation. However, if the government agency has an internal complaint procedure, the employee must initiate that procedure before filing suit.

Sabine-Pilot claims

In 1985, the Texas Supreme Court decided the Sabine Pilot Services, Inc. v. Hauck, in which it held that there was an exception to the employment-at-will doctrine where the employee was discharged in retaliation for refusing to dump bilges into the harbor in violation of the law. The court held that this exception “covers only the discharge of an employee for the sole reason that the employee refused to perform an illegal act.” Texas courts have also held that in order for the Sabine Pilot exception to apply, the illegal act in question must be one that carries criminal penalties.

Workers’ Compensation

Texas Labor Code section 451 prohibits discrimination against an employee who files a workers’ compensation claim or institutes a proceeding alleging retaliation for filing such a claim. A person proceeding under this statute does not need to prove that a discriminatory motive was the only reason for his or her termination; rather an employee can prevail upon proof that, absent the filing of the workers’ compensation claim, the discriminatory conduct would not have occurred when it did.