NPR has a weekly podcast called “Hidden Brain.” A variety of science related topics are discussed each week. Recently, one of the Hidden Brain podcasts was titled, “How to Complain Productively.” The podcast’s opening remarks are, “We often look down on people who complain a lot. Yet when something goes wrong in our own lives, many of us go straight to griping, grumbling and kvetching.” The podcast continues by explaining that “Researchers, counselors and motivational speakers have examined the effects of these attitudes on our relationships and wellbeing.” The program host goes on to say that “complaining is destructive to our relationships, and it limits your career success.”
And it’s that last part about career success being limited that caught my attention. It is true that employees have undoubtedly made workplace complaints which have limited their professional growth and advancement. Retaliation is something that can detrimentally affect a complaining employee’s career success. In addressing why managers retaliate, the Equal Employment Opportunity Commission (“EEOC”) points to social psychology for an understanding of the underlying causes of retaliatory behavior. According to the EEOC, research has consistently demonstrated that the desire for retaliation is common upon experiencing an offensive interpersonal encounter, particularly if the encounter threatens one's self image. Whether a manager will engage in retaliation is influenced by several factors, which include the manager's psychological traits, perceptions of the organizational culture, and organizational opportunities. This can be boiled down to the fact that “people are people.” And as long as people are human, discrimination, harassment, and retaliation will occur.
There are many different types of employee complaints. For example, complaining about the volume of workload, work assignments, and the competence of other employees can be perceived as having a negative effect on the work environment. Those types of complaints likely do not embody the leadership skills that an employer desires. The aforementioned complaints are not the only type of complaints that are expressed to employers. There are other types of complaints, such as complaints of discrimination and harassment. Employees might also complain about being denied overtime compensation. They might also make complaints concerning workplace safety or complaints about being denied medical leave. Complaints about unpaid wages, unpaid overtime, safety violations, discrimination, and denials of medical leave are considered to be “protected complaints.” The law prohibits an employer from retaliating against an employee for making protected complaints. It does not seem fair that an employee should have a target on his or her back for making these types of complaints. But, the reality for many is that employers do not like complainers. If employees were not fired for making protected complaints, there would have been no need for anti-retaliation laws. Numerous statutes have provisions to protect employees who complain about violations of their rights. The Family and Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”), the New Jersey Conscientious Employee Protection Act (“CEPA”), the New Jersey Law Against Discrimination (“NJLAD”), and the Americans with Disabilities Act (“ADA”) are just a few of the statutes that protect employees when they complain.
If an employee makes a protected complaint and suffers repercussions, such as a demotion or a termination as a result of making the complaint, the employee has a remedy under the law. The employee also has the burden of proof for his or her legal claim. First, the employee has to provide that he or she actually made a complaint. It is difficult to prove verbal complaints, as they can be denied by the employer as ever having occurred. That is why employees should memorialize their complaints to be in a position to prove that the complaint was actually made. An email is an excellent way to complain. If the complaint was made verbally, the employee can follow up the complaint with an email, by saying something like, “I’m following up on the complaint that I made about racial discrimination…” In addition, the employee also has the burden of proving that the adverse employment action (e.g., demotion or termination) was in response to the protected complaint. In summary, the employee needs to demonstrate that he or she made a protected complaint, suffered an adverse employment action, and that the adverse employment action was causally related to the protected complaint.
Of course, employers are free to discipline or terminate workers if those employment actions are motivated by non-retaliatory and non-discriminatory reasons. If a disciplinary action or termination comes in very close timing to the protected complaint, please contact the Law Firm of Morgan Rooks PC to discuss your rights.