Nashville Bar Association
Tennessee Bar Association
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Vanderbilt Law School

Retaliation

Unlawful retaliation is the most common type of employment law claim and it usually occurs when an employer fires or otherwise disciplines an employee for reporting potentially illegal activities.

If you were fired soon after reporting or complaining about potential unlawful activity, contact a Nashville employment lawyer immediately at 615-823-1737 or curt@maskerfirm.com.

It is against the law for an employer to retaliate against an employee because he or she has opposed any practice made unlawful by federal or state law or because he or she has engaged in “protected activity.” Protected activity generally includes informal internal reporting of what you believe to be illegal employment actions, but some laws such as the Tennessee Public Protection Act require you to report to someone other than the alleged wrongdoer.

To raise a presumption of retaliation, an employee must show (1) he or she engaged in a protected activity [examples below]; (2) the employer subjected him or her to an adverse employment action [see examples below]; and (3) there is evidence showing a link between the protected activity and the adverse action.

The laws discussed in this article require you to show an adverse employment action, which may include:

  • termination
  • demotion
  • pay cut
  • eliminating or reducing job responsibilities
  • being denied a pay raise
  • being passed over for promotion
  • others actions that affects the terms and conditions of your employment.

There are many other types of adverse employment actions but the general idea is that the action must be more than a trivial harm.

Examples of Protected Activity A. Opposing Discrimination or Harassment

The Tennessee Human Rights Act and Title VII of the Civil Rights Act of 1964 together protect employees who oppose unlawful workplace discrimination or harassment based on age, race, color, creed, religion, national origin, sex (including pregnancy, sexual identity, and sexual orientation), and disability. These two laws are generally construed identically. Other federal laws prohibition such discrimination based on age, disability or genetic information.

To engage in “protected activity” under Title VII, you must oppose what you believe in good faith is an unlawful employment practice. While vague complaints may not constitute “protected activity,” a complaint does not to be formal.

The employment practice does not have to be unlawful if you have a good faith belief that the practice is unlawful. For example, reporting potential discrimination to human resources constitutes “protected activity” even if the alleged discrimination turns out to be lawful. Also, if you act as a witness in a workplace discrimination investigation then you are protected as well. If you advocate on behalf of another person who is a member of a protected class you may be protected as well.

B. Opposing Wage Violations

The Fair Labor Standards Act (FLSA) establishes employment standards including minimum wage, overtime, and recordkeeping. Under the FLSA’s anti-retaliation provision, an employer cannot discriminate against an employee because he or she complained about wage violations.

Although an oral complaint can suffice, you should complain in writing. The complaint does not need to be formal, but it should clearly state that you are asserting your rights under the FLSA.

To be protected by the FLSA’s anti-retaliation provision, your complaint must be sufficiently clear and detailed for a reasonable employer to understand it, based on content and context, as an assertion of rights protected by the FLSA. Also, your complaint must be adversarial in nature, and mere expressions of concern or discomfort or frustration are not protected.

If you have been retaliated against after expressing opposition to the employer’s wage violations, immediately contact an employment lawyer serving Nashville at 615-823-1737 or curt@maskerfirm.com.

C. Reporting Violations of the False Claims Act

The False Claims Act (“FCA”) is a federal law that imposes liability on persons and companies who defraud governmental programs. The FCA has a qui tam provision that serves as one of the strongest whistleblower laws in the U.S. “Qui tam” literally means “in the name of the king” and gives a person (called the “Relator”) the ability to sue wrongdoers on behalf of the federal government.

In qui tam actions the government has the right to intervene and join the action. The Relator receives a percentage of the court award or settlement for blowing the whistle. This amount varies between 15-30% depending if the government intervenes in the case.

The FCA’s anti-retaliation provision protects employees who raise red flags about possible fraud against the government. Common red flags in the healthcare context include:

  • False Certification: Submitting claims for payment to the government (or a government contractor) that falsely certify that the company has complied with all relevant laws, contract terms, or regulations;
  • Up-coding. Submitting claims to the government for health care procedures that are more expensive than those that were actually performed;
  • Overbilling: Purposefully inflating the cost of services, including double billing for a single procedure;
  • Fabricated bills: Submitting a bill to the government for services that were never performed.

As used in the FCA, “protected activity” means “activities [that] reasonably embody ‘efforts to stop’ FCA violations.” Put simply, your actions must show that you reported and tried to stop fraud on the government.

To establish a prima facie case of FCA retaliation, the plaintiff must show: (1) she engaged in a protected activity; (2) her employer knew that she engaged in protected activity; and (3) her employer discharged or otherwise discriminated against the employee as a result of the protected activity.

If you suffered any adverse employment action after reporting fraudulent billing to your employer, contact The Masker Firm for a free consultation.

D. Reporting Workplace Safety Violations

Employers cannot fire or discriminate against an employee who exercises his or her right under the Tennessee Occupational and Safety Health Act of 1972, including if the employee makes safety or health complaints.

You may have as little as 30 days to file a complaint with TOSHA after the alleged discriminatory action. You can file a complaint here. You may also have legal claims against your employer under the Tennessee Public Protection Act.

E. Military Service

Federal law provides robust protections for servicemembers who answer the call to serve our nation. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects civilian job rights and benefits for U.S. military members including Reserve components.

A key protection in USERRA is the “escalator principle” that requires servicemembers be reemployed in the job they would have attained had they not been called to serve. This includes the same seniority, status, and pay, as well as other rights and benefits determined by seniority. In addition, an employer is prohibited from retaliating against a servicemember for asserting his or her rights under USERRA.

If you were fired, demoted, or suffered any other adverse action because of your military-related absence, immediately call a Nashville employment lawyer like Curt Masker. Attorney Masker has significant USERRA experience including creating favorable USERRA caselaw for servicemembers.

F. Filing a Worker’s Compensation Claim

Under Tennessee law it is unlawful for an employer to retaliate against an employee because he or she filed a claim for worker’s compensation.

Many other oppositional activities constitute protected activity. If you were fired for reporting or refusing to participate in suspected illegal activities, contact a Nashville-based employment lawyer at 615-823-1737 or curt@maskerfirm.com.

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