Advising Clients About Claims of Employer Retaliation
Adverse action by an employer against an employee — even an executive or professional employee — represents a significant risk for those who complain of discrimination, report illegal activity, or support the workplace rights claim of a colleague or subordinate. The attorneys of Kaiser Saurborn & Mair advise and represent clients with claims of retaliation for asserting protected rights in New York and New Jersey.
Analyzing the Facts of Employer Retaliation
Under the doctrine of employment at will, retaliation on the part of an employer against an employee will not by itself support a claim for damages. The act of retaliation must be linked to the assertion of a protected right in favor of the employee: the right to freedom from discrimination, sexual harassment or other recognized workplace rights.
For professional or managerial employees working under negotiated contracts, employer retaliation might affect not only the person's statutory rights, but contractual rights as well, such as the exercise of judgment within a defined scope of discretion.
The Firm's lawyers review the circumstances of a given situation and advise clients about the likelihood of a successful retaliation claim. Our inquiry will likely cover such considerations as these:
- Does state or federal law protect the employee conduct that resulted in employer retaliation?
- What legitimate pretext will the employer advance to justify the adverse action?
- Does the evidence support the inference of a retaliatory motive, and does it support at all the legitimate pretext stated by the employer?
- Does the employer have a history of unlawful retaliation against employees?
- How can the evidence of retaliation support negotiated severance as an alternative to arbitration or litigation?
Although a solid case of employer retaliation can ultimately support a claim for damages in civil litigation under many circumstances, it often makes better sense to use the evidence as leverage in severance negotiations. This can help resolve the claims more quickly and without the uncertainty of litigation or the ongoing risks of a hostile work environment.
Kaiser Saurborn & Mair advises and represents clients in New York and New Jersey about their options in cases of employer retaliation.