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Workplace retaliation claims are on the rise

Reports of workplace retaliation have been climbing – in 1997, such claims made up 22 percent of all workplace discrimination claims; in 2017, they made up nearly 45 percent of the claims. In New Jersey, the 2017 figure was 38 percent.

Retaliation is any adverse action that occurs after an employee has filed a complaint against the company for harassment or discrimination. While overt retaliation is obvious and can include demotions, negative reviews, reassignments, pay reductions or termination of employment, there are subtle yet actionable forms of retaliation as well.

Subtle retaliation

Some subtle yet actionable examples of employer retaliation include:

  • Ostracization – employees who have filed formal complaints report being excluded from work decisions by their managers.
  • Cold shoulder – employees report that managers and employees have retaliated by giving them the cold shoulder after they file a formal complaint.
  • Verbal abuse – employees report they have suffered verbal abuse from their employers and coworkers after filing a complaint.
  • Relocation – employees report being located in another part of their office or building after a formal complaint.

A Los Angeles jury recently awarded one former and two current FedEx employees millions of dollars in a retaliation lawsuit. One of the men, Mark Collins, 60, was a supervisor for the two others who complained that the carrier company was putting profits over the maintenance of their aircraft. He supported the men’s claims, and also supported the men in their claims of being victims of whistleblower retaliation.

As a result, he said management refused to promote him, screamed at him, shunned him, treated him in a hostile and rude manner, and failed to help him cope at work with his Chron’s disease and ulcerative colitis.

The jury awarded Collins $260,000 in compensatory damages and $2.75 million in punitive damages.

Preventing retaliation

These are some of the methods used by businesses to prevent retaliation:

  • Policy: Companies should have a policy on retaliation in place and available in an employee handbook. This policy should set forth how to report and investigate complaints of retaliation.
  • Investigate: All complaints of retaliation should be taken seriously and investigated thoroughly.
  • Confidentiality: All complaints should be kept confidential and shared on an as-needed basis. All complaints should not in any way affect the complaining employee’s career opportunities.
  • Records: Good record keeping is essential. Everything should be documented from the initial complaint to the conclusion, including each step of the investigation. Any legal proceedings could hinge on the quality of the records.

Preventing workplace retaliation has become big business as well, with many companies offering guidance on how to avoid retaliation lawsuits.

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