Construction Law

Understanding Retaliation Laws in Construction Part 3

It’s important that construction firms understand retaliation laws. After an employee makes a complaint, punishing the employee for their protected activity is unacceptable. In this four-part article, the St. Petersburg construction attorneys at Cotney Attorneys & Consultants are discussing retaliation. In the first and second part, we educated our readers on the lawful rights of employees that make a complaint and the unlawful acts an employer may commit if they punish the employee for taking part in this protected activity. In this section, we will discuss the legal criteria to determine whether or not an incident qualifies as an act of retaliation.

Proving a Retaliatory Motive

For cases involving retaliation, a “retaliatory motive” is required. In other words, the employee’s attorney must be able to prove that the adverse action would not have occurred without the presence of the protected activity. Evidence that may support an employee’s case include:

• Timing: the timing of when the adverse action occurred is critical to a retaliation case. If an employer punishes an employee immediately after they made a complaint, this would look extremely suspicious, especially if the employee has not faced discipline in the past.  
• Discipline: any type of written discipline or verbal statement could be used as evidence. For example, if an employee that complained receives a write-up for tardiness and other employees are not written up for the same infraction, this could be considered evidence.     
• Adverse Action: depending on the circumstances of the case, the adverse employment-related action itself could be proven to be fabricated. In other cases, there may be evidence that the employer attempted to interfere with the protected activity.

As we said earlier in this article, just because an employee claims they were retaliated against doesn’t mean this is valid. Some defenses for allegations of retaliation include:

• Unaware: in many cases an employer wasn’t aware that the employee engaged in a protected activity. If the employer didn’t know that an employee made a formal or informal complaint, the employer’s discipline of the employee is unrelated.
• Warranted Discipline: an employer has a right to discipline employees that violated company policies, performed their tasks poorly, and engaged in misconduct, among other reasons. In some cases, a business decision is made to downsize or an applicant simply didn’t have the qualifications for the position.
• Consistency: another strong defense is demonstrating consistency in punishment. If similarly situated employees that had not engaged in a protected activity experienced similar discipline, this proves that the protected activity had no impact on determining the punishment.    

In the final part of this series, we will discuss how to mitigate retaliation from occurring at your workplace.

If you would like to speak with an experienced attorney dedicated to St. Petersburg construction law, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.