Workplace protected activities are defined as activities that employees can take part in without being retaliated against by their employer. It is essential for business owners to have a solid grasp on this topic as retaliation claims are typically the prevalent category of cases submitted to the federal Equal Employment Opportunity Commission (EEOC). The good news is that the overwhelming majority of these cases could have been prevented had employers understood the nuances of protected activities and taken appropriate action to remain compliant.
Concerted & Protected Activities
A concerted activity is when two or more employees collaborate in an effort to improve the workplace in some capacity or address certain employment related issues. Employees are entitled to participate in concerted activities, even in ‘right-to-work’ jurisdictions, per Title VII of the National Labor Relations Act. This is a distinguished from a protected activity, which is usually associated with providing employees safeguards against workplace retaliation. There are multiple iterations of protected activities depending on the context of the situation. It is addressed in a number of statutes including but not limited to the National Labor Relations Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act and the Americans with Disabilities Act.
Accessibility of Remedial Initiatives
The EEOC considers retaliatory actions by workplace supervisors in response to protected activity as one of the most reported and significant forms of employer misconduct. A key component of prohibited retaliatory conduct is the recognition that employees are entitled to “unfettered access to remedial measures” and that they must be afforded protective measures with respect to their ability to “engage in protected activity or opposition to an illegal employment practice.” Employees who communicate to their employer they intend to file a formal complaint via the company’s internal reporting protocol or refuse to carry out directions they feel are discriminatory or otherwise illegal, are typically shielded from retaliation per multiple federal definitions of protected activity.
Breaking Down the NLRA Opposition & Participation Clauses
The key issue in many EEOC retaliation suits is whether an employee’s participation in a protected activity was in fact what triggered retaliatory action by the employer. Federal legislation bans employers from retaliating against an employee due to their opposition to an unlawful employment practice such as discriminatory acts or “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” pertaining to an allegation of illegal employer conduct.
Title VII of the National Labor Relations Act sets out “opposition” and “participation” clauses. Because there are varying thresholds of statutory protection associated with each clause, it is important for employers to understand the difference between the two.
The “opposition” clause covers conduct separate from EEOC-specific charges, to include court proceedings, so protected activity can entail a wider degree of protective measures than those outlined in the “participation” section. In order to claim protected “opposition” an employee’s actions must be predicated on “a reasonable, good-faith belief that they are opposing an unlawful employment practice.”
The ”participation” clause is applicable in situations where employees submit discrimination claims with the EEOC or comparable federal or state regulatory entity, reporting allegations or offering evidence as well as assisting or participating in investigatory measures and subsequent judicial proceedings.
Employees participating in “opposition” activities regarding employer conduct they believe is illegal and/or discriminatory can be legally terminated if a court deems that their allegations are not premised on a good faith and reasonable basis that the employer’s actions were illegal per federal or state statutes.
“Opposition activities” that are merely complaints pertaining to employer conduct not determined to be discriminatory according to Title VII, or lead to the inadvertent disclosure of proprietary or confidential company information, or is otherwise leveraged as an excuse to not fulfill employee obligations do not merit protective safeguards from employers.
Understanding Opposition Activities
The EEOC Compliance manual provides the following hypotheticals of protected opposition activities:
- Making threats to file charges or formal complaints on the basis of discriminatory conduct on part of the employer
- Voicing complaints regarding alleged discriminatory practices against the employer or peers
- Refusing to follow an instruction due to having a “reasonable belief that it is discriminatory”
Although employers have long complained that the EEOC adopts an unnecessarily broad definition of what it can deem as “opposition,” general disagreements pertaining to benefits or job duties are not considered protected activities.
Participation Clause Protective Measures
The “participation” clause provides greater protections than those set forth in the “opposition” clause as the judicial system has the option of finding there was retaliatory conduct even if the worker premised their actions on unreasonable beliefs or if they were “in bad faith, malicious or defamatory due to the simple fact that discrimination is inherently an illegal practice in a work environment.
Employees who are actively engaged in an administrative or judicial proceeding cannot be legally fired even if their involved in oppositional activity is based on false allegations submitted in bad faith or “gratuitous disclosures of confidential company information.”
Terminating, laying off, blacklisting, demoting, denying overtime, withholding a promotion, disciplining, denying benefits, refusing to hire or rehire, intimidating, threatening, reassigning, reducing pay or punitive rescheduling of hours are all considered “adverse actions” if taken in a retaliatory manner in response to an employee taking part in a protected activity.
Examples of Protected Activity
- Complaining to an employer, a labor union, the state’s occupational safety and health agency, or other government agency, regarding alleged job health and safety hazards.
- Requesting recommended precautions and procedures, including training, to take when working with materials and equipment regarded as potentially hazardous.
- Truthfully revealing to an inspector that a workplace supervisor or employer has been notified of hazards but has not provided you or fellow workers with the mandated training.
- Refusing a task or an assignment that a “reasonable person” would see as creating “a real danger of death or serious injury.”
- Reporting injuries and illnesses to a workplace supervisor or employer.
- Filing a workers’ compensation claim.
New York Specific Considerations
States can impose stricter guidelines than the applicable federal statutes—which is the case for business owners operating in New York. Governor Hochul recently signed off on legislation in October 2021 that considerably broadened employee protections for whistleblower activity. The new statute amends Section 740 of New York’s Labor Law to broaden: (1) the scope of protected activity that entitles an employee to anti-retaliation protection; (2) the categories of workers protected against retaliation; (3) the definition of prohibited retaliatory action; and (4) the statute of limitations. The law went into effect on January 1, 2022.
The statute now prohibits employers from taking retaliatory action—which now includes not only discharge, suspension, or demotion but also any other ‘adverse action’ or threat to take adverse action—due to an employee disclosing or threatening to disclose to a supervisor or public entity any employer conduct that the worker reasonably believes is illegal or in violation of any regulation or refused to participate in said conduct. Note that the new law also broadens the protections to cover both current and former employees as well as independent contractors and the statute of limitations for them to file a claim has been extended from one to two years.
The law further obligates employers to post a notice conspicuously in any easily accessible, well-lit location customarily frequented by employees advising them of their expanded rights pertaining to protected activities.
Safeguarding Yourself & Your Business
As a business owner facing any form of retaliation claim, it is advised that you consult with an experienced business attorney that can assist you in preparing an effective defense against the claim and mitigate any potentially adverse consequences. LOVE LAW FIRM has years of experience successfully advising New York business owners in all aspects of business operations—including issues related to protected activities and retaliation. Contact us today to learn more about how we can assist you in developing efficient, proactive solutions for all of your business needs.
Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM PLLC which dedicates its practice to serving entrepreneurs, start-ups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.