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Your Rights When Your Employer Retaliates Against You

Do I have any rights if I am retaliated against for complaining about work conditions?

Yes, you do! Many low-wage workers face challenges involving their work conditions and pay. Some workers who complain about such conditions face retaliation and termination. Fortunately, retaliation is illegal. In New Jersey, workers have the right to sue for damages in court when employers discriminate against them for taking action or discussing action to improve conditions.

But what if the boss who hired me is only a subcontractor for someone else, and my boss disappears or goes broke? What can I do?

You still have rights! Some employers take advantage of the demand for jobs to violate employment laws and threaten workers who speak out against such abuses. One factor that can lead to this violation of rights is the subcontracting of the workforce. Some employers who subcontract labor feel protected from the claims of the workers. This makes them think they can do things they would not do if they felt that they were directly accountable. The good news is that state and federal wage laws that protect against retaliation apply to the company, the contractor, and the subcontractor. This protection includes labor subcontractors such as temporary help agencies, labor contractors, and labor leasing firms, and also covers problems when your job is outsourced.

An employee who has had wage and working condition violations, or who is terminated because of complaints about such conditions, may be discouraged from going through with the claim because the subcontractor has disappeared or has few resources. But wage law may allow you to go after the individual paying you as well as those who are acting jointly with that person.

What kinds of jobs and work conditions are covered by these laws?

The laws cover most jobs and many work conditions. A few examples of jobs are office building service workers, garment workers, and even computer programmers. Some of the work conditions include reduced pay, difficulty collecting pay, barriers to organizing workers, minimum wage and overtime problems, and health and safety violations.

I am an undocumented worker. Do I have any labor rights?

Yes, you do. Another factor in the violation of wage and employment laws has been the abuse of the increasing number of undocumented workers in the workforce. Employers may view such people as having no rights, or not having the ability to enforce such rights. In fact, undocumented workers can and do enforce their rights to workplace protection. The U.S. Department of Labor has made this clear in its current policy on wage collection. For example, the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) provide labor protections for vulnerable workers, including undocumented workers. The FLSA requires employers to pay covered employees a minimum wage and, in general, one and a half times an employee’s regular rate of pay for overtime hours. The MSPA requires employers and farm labor contractors to pay the wages owed to migrant or seasonal agricultural workers when the payments are due. 

What are the laws that give workers protection?

There are both state and federal laws that protect workers in New Jersey against retaliation, discrimination, and unlawful termination. Many of the workplace protection laws provide protection for workers exercising their rights. Some of the chief federal laws are as follows:

  • The Fair Labor Standards Act wage law makes it unlawful to discharge or discriminate against any employee because of filing a complaint or being willing to testify on a complaint.

  • The Occupational Safety and Health Act also has similar broad protections with regard to workplace safety and health requirements. In addition, workers can file complaints without using their names.

  • The Americans with Disabilities Act provides extensive protection for workers with disabilities in the workplace and has even broader protections regarding discrimination or retaliation. The Americans with Disabilities Act prohibits discrimination against a person opposing unlawful practices or helping with an investigation.

  • The National Labor Relations Act (NLRA) gives rights to workers including those organizing, trying to form, join, or assist labor organizations to bargain as a group, and to engage in activities together with other workers. The anti-retaliation protection of the NLRA gives employees broad protection regardless of whether there is a union in the workplace.

    (Please note that a recent U.S. Supreme Court case has restricted the applicability of the NLRA to undocumented workers.)

The following state laws protect workers:

  • The Law Against Discrimination contains protections for persons opposing unlawful practices, filing a complaint, or aiding or encouraging rights under the Act.

  • The Family Leave Act gives rights to time off for a serious health condition of a child, parent, or spouse, or for the birth of a child. The Act provides for up to 12 weeks of leave in a 24-month period.

  • Employees claiming or attempting to claim New Jersey State Workers Compensation benefits may not be fired or discriminated against for such actions.

  • New Jersey has provided broad protection for whistleblowers through the Conscientious Employee Protection Act (CEPA). CEPA protects against retaliatory action employees who disclose or object to activities, policies, or practices that the employee reasonably believes are in violation of law or public policy. If a “whistleblower employee” is subject to retaliation, then that employee can try to get their job back, lost wages, and punitive damages.

What should I do if I think my employer has retaliated against me?

If you are faced with workplace problems, you can contact your regional Legal Services program (see the below link) to get advice on your rights and the next steps in your case. Don’t be afraid to call!

 

This article originally appeared in the June 2005 issue of Looking Out for Your Legal Rights®.​​

8/27/2012