Everyone who has ever had a job knows that the workplace comes with its ups and downs, from getting a raise and having your work recognized, to suspecting you’re underpaid and managing interpersonal conflicts. The low points cause employees to wonder, “Is my employer allowed to do this? What can I do to stop it, and what happens to me if I speak up?”
The reality of the American workplace is that much of the stress, unfairness, or unpleasantness on the job is legal. Your bosses can be incompetent or have terrible interpersonal skills; your employer can skip giving everyone raises for the third year in a row; the company can relocate and force you into a long commute. Most employees in the U.S. are at-will, which means employers can fire them without advance notice and for no reason at all.
In that environment, it can be hard to know when unfairness on the job crosses the line into something illegal. Federal law prohibits employers from harassing or treating employees less favorably because of their race, gender, age, religion, disability and national origin. Sometimes, this discrimination can take the form of explicit derogatory comments about gender, for example, but it’s often much subtler, sometimes to the point of being difficult to detect (particularly in pay discrimination). Employees may also have access to certain protections if they need time off to care for themselves or a family member, or if they believe their employer is not paying wages correctly.
Figuring out what to do when you think your employer has engaged in unlawful conduct is another challenge. It’s important to document things, ideally through taking detailed, nearly contemporaneous notes in a document you keep at home. Years later, notes that you took as events and issues that arose will be invaluable to your recollection and will lend credibility to your account. Audio recordings are generally disfavored because many states make it a crime to record a conversation without the other participant’s consent.
For most employees who are being subjected to unlawful conduct, their main goal is to make it stop, but how? While many employers have human resources personnel, a recent New York Times article profiled some of the reasons many employees don’t choose to report the conduct. However, in some cases, reporting discrimination or other unlawful conduct to human resources or another superior with authority to fix the problem is important to holding the company accountable. For example, if you’re being harassed based on your gender by your office-mate, the company may not have reason to know and the responsibility to correct it until you report.
Employees often cite fear of retaliation as a reason for not reporting. Whether you’re protected from retaliation after reporting depends largely on the nature of what you report. For example, if you get fired after you tell human resources that your boss’s editing style makes work extremely frustrating, you likely don’t have legal recourse. On the other hand, if you get fired shortly after reporting that your boss passed you up for a promotion because of your gender, you likely have a strong retaliation and wrongful termination case.
Navigating these questions can be challenging, and every person’s experience is unique. If you believe that you’re experiencing discrimination or other unlawful conduct in the workplace, promptly consult with an employment lawyer who can assess the facts of your case and advise you about your options. All claims against your employer expire after certain periods of time, so it is important to seek advice earlier rather than later.
Sanford Heisler Sharp, LLP has employment lawyers in New York City, Washington, D.C., San Francisco, San Diego, and Nashville.