What is retaliation?
Retaliation occurs when an employer fires, demotes, harasses, or otherwise punishes an individual for filing a charge of discrimination, participating in a discrimination proceeding, opposing discrimination, or exercising their civil rights under state or federal law. For instance, employees who file complaints with an enforcement agency (whether it’s the IRS, DOL, OSHA, EEOC, a state agency, or the company itself) to assert their rights are protected from being retaliated against by their employer for taking such action.
Protections against retaliation are included in all of the laws enforced by the EEOC and Title VII of the Civil Rights Act of 1964. The ADA also protects individuals from coercion, intimidation, threats, harassment, or interference in their exercise of their own rights or their encouragement of someone else’s exercise of rights granted by the ADA. The WHD has anti-retaliation laws too and so do a lot of states.
Simply put: there are a whole mess of interlocking, overlapping laws designed to prohibit employers from punishing workers for exercising their rights.
Who is protected from retaliation?
Employees or workers who are determined by a court of law to have been employees. For example, if you were wrongfully classified by your employer as an independent contractor but were later determined to be an employee, you’re likely covered.
Who isn’t protected from retaliation?
Non-employees. Unfortunately, that includes you, renters and so-called “independent contractors.” Unless a court finds that you were misclassified, you likely aren’t protected from retaliation (but you may be protected under certain anti-discrimination laws).
The Dudley Case
In December 2013, nail technician renter Joyce Viar-Robinson filed a lawsuit against hair salon Dudley Beauty Salon, alleging FLSA violations, violations of the Maryland wage Payment and Collection Law (MWPCL), breach of contract, wrongful termination, fraud, fraudently tendering checks with insufficient funds, misrepresentation, and conversion. Viar-Robinson also claimed that Dudley arbitrarily changed her rate of pay without announcement or warning.
Ultimately, Viar-Robinson’s FLSA and MWPCL claims were dismissed, as she was clearly an independent contractor under the court’s six-factor test to determine worker classification. She definitely set her own hours, had complete control over her prices, products, and procedures, and wasn’t controlled whatsoever. Additionally, she was paid daily and the services she rendered as a nail technician were not integral to Dudley’s hair salon business. The only control factor present was central payment processing, which wasn’t one of the six factors the state considered.
Because Viar-Robinson was determined not to be an employee her retaliation claim was dismissed since only employees are protected from retaliation. On both a Maryland state level and a federal level, Viar-Robinson wasn’t protected from retaliation.
However, self-employed workers are considered exceptions to the employment-at-will doctrine, which states that employees may be discharged at any time, with or without cause. Had Dudley dismissed Viar-Robinson without her having violated the terms of their contractual arrangement, Viar-Robinson may have had a case for a contract violation suit against Dudley. (As it stands, it appears Viar-Robinson left the arrangement after being screwed for the last time–and really, who the hell could blame her? The woman had far more patience than I, that’s for damn sure.)
The Belle World Beauty, Inc. Case
In 2011, Manhattan nail technicians Meng L. Ji and Ying Zhu filed suit against Belle World for allegedly violating nearly every wage and labor law in the book.
They sought compensatory damages in the amount of no less than $200,000, punitive damages, back pay, front pay, attorneys’ fees, and $500 reimbursement for supplies they were required to obtain.
In all, they alleged that Belle World had:
- worked them from 10am to 8pm (though they often arrived early and worked late). six days per week, at a rate of $100 per day;
- disallowed them to take breaks;
- failed to keep proper records or provide detailed wage statements;
- failed to post required notices regarding minimum wage and overtime pay; and
- wrongfully terminated them for complaining about the long hours and lack of overtime pay.
These alleged crimes would constitute violations of the New York Labor Law and the Fair Labor Standards Act. This case was unique because even though the employees last worked for Belle World in 2007, they sought to have the 2011 Wage Theft Prevention Act applied to their case (which Justice Jane Solomon permitted, allowing them to seek liquidated damages of 100% of unpaid wages, rather than 25% they would have been entitled to under the laws in place at the time of the violations).
Another Regis Case
This time, we’re talking about this retaliation suit filed against Regis Corp (DBA as Smart Style again).
Regis Corp paid $90,000 to two stylists: Hope Hunt and Annie Mae Locklear. In June 2014, Hunt and Locklear were allegedly told by the soon-to-be salon manager that she didn’t want any African Americans working in the salon. The next month, the two told an African-American candidate for an open position in the salon that they believed the manager didn’t want to hire her on account of her race. Hunt and Locklear were then fired in August for “lying when they told the black candidate she was not hired for that reason.”
Hunt and Locklear claimed they were actually fired for opposing unlawful discrimination.
Regis agreed to provide training on retaliation to all supervisors, managers, and employees at its North Carolina and South Carolina salons, and will now report the action in takes in response to any employee’s complaint about discrimination. They also agreed to post a notice to employees concerning their rights under federal, anti-discrimination laws.
If you feel you’ve been discriminated against in your workplace, you can file a complaint with the EEOC here. You should never be punished for exercising your civil rights or defending the civil rights of others in the workplace.