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What Constitutes Employer Retaliation?

Sometimes, employers misbehave. If an employee does something that causes problems or inconveniences for the company, such as protesting a policy, they may face punitive action even if their employment contract allows them to act in the way they did. If an employer acts in a method inconsistent with the law, sometimes an employee will take it upon himself or herself to inform the proper authorities, potentially opening them up to retaliation. It is important to understand what is actionable and what is not.

Normal Rules of Employment

South Carolina is an at-will state, as is nearly every other. This means that with limited exception, your employer can fire you at any time, for any reason. The exceptions are, as one might imagine, related to state and federal civil rights law, for the most part – one may not be fired on the basis of immutable characteristics like race, sex, age, national origin and the like, though as of now sexual orientation is omitted from the list.

However, it is also forbidden to terminate or retaliate against an employee for engaging in any legally protected activity, including protesting, striking or utilizing services like workers’ compensation. South Carolina law sets out what constitutes ‘legally protected’ activity, so an employer usually has very little excuse to plead ignorance. A somewhat special case is if your employer has been engaging in illegal or unethical conduct and you seek protection under a state or federal whistleblower statute.

Criteria To Prove Your Case

When it comes to the method by which you can hold your employer liable, there are different criteria for different situations. If you are terminated or otherwise punished for engaging in legally protected activities, you will have to prove your case in a slightly different way than you would under a state or federal whistleblower statute. It is imperative to note that under state law, only employees of state agencies are protected from retaliation in regard to whistleblowing. Federal law offers more protections, but depending on the reason for your whistleblowing, your claim may lie in state law.

If you believe you have been the victim of retaliation due to legally protected activity like striking, state law provides more protection and guidance. You must be able to show that you experienced an ‘adverse employment action,’ and you must be able to show that action was related to the legally protected activity you engaged in. For example, if you give information to human resources regarding harassment by your superiors, your manager may demote you or dock your pay, providing some other reason as a pretext. However, the inference may be drawn that the punitive action happened as a result of your testimony.

Depending how significant the adverse employment action against you may have been, it may even amount to a constructive discharge – in other words, if your employer creates a working environment so hostile that you cannot perform your job to its description, you may have no recourse but to resign. While this is not a true discharge (you were not fired), it still achieves the same end, and is still potentially grounds for liability.

An Employment Lawyer Can Answer Your Questions

No one likes being punished when they believe they are doing the right thing. If you believe this has happened to you, you need experienced legal counsel on your side. Attorney A. Christopher Potts has been dealing with retaliation cases for many years, and is happy to help you get through what can be a difficult process. Contact the Charleston employment law firm of Hitchcock & Potts today to set up an appointment.

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