Other federal laws contain anti-retaliation provisions prohibiting employers from taking action against an employee for bringing a complaint under the law. Taft attorneys assist employers to avoid claims of unlawful retaliation through proper employment policies, counseling prior to employee discipline or termination, and defending employers against administrative and/or court claims for retaliation.
Most of the various anti-discrimination acts (i.e., Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, etc.) prohibit retaliation against individuals opposing unlawful acts and individuals participating in the procedures provided by the Act. An employee seeking to bring a claim of retaliation under these acts must show: (1) that they either participated in a protected activity or opposed an unlawful activity; (2) that the employer knew about the protected activity; (3) that they suffered an adverse employment action; and (4) that there is a causal link between their participation or opposition and the adverse employment action.
Employee Retirement Income Security Act of 1974 (ERISA)
The Employee Retirement Income Security Act of 1974 (“ERISA”) makes it unlawful for any person to discharge, fine, suspend, expel, discipline or discriminate against a participant or beneficiary for exercising any right to which they are entitled under the provisions of an employee benefit plan, or for the purpose of interfering with the attainment of any right to which the participant may become entitled to under the plan.
The first part of ERISA, prohibiting retaliation against participants for exercising benefit rights, is modeled after the anti-retaliation provisions of other federal labor laws. However, the second part, prohibiting interference with the right to a benefit, is unique to ERISA and employers should be aware of it.
National Labor Relations Act
The National Labor Relations Act (the “NLRA”) also prohibits retaliation. Specifically, section 8(a)(4) of the NLRA makes it unlawful for an employer to discharge or otherwise discriminate against an employee because he or she has filed charges or given testimony under the purview of the NLRA. Employers are also prohibited from retaliating against employees for engaging in protected concerted activities under the NLRA, regardless of whether the workplace is unionized.
Family Medical Leave Act
The Family and Medical Leave Act of 1993 (the “FMLA”) contains an anti-retaliation provision similar to those found in both Title VII and ERISA. Like Title VII, it prohibits retaliation against individuals who have participated in FMLA proceedings and inquiries and those who have opposed any practices made unlawful by the FMLA. Additionally, like ERISA, the FMLA also prohibits employers from interfering with the exercise of any right provided under the FMLA.