When it comes to retaliation claims, it’s essential to know whether the South Carolina employee has engaged in what the law calls “protected conduct.” Normally this takes the form of a complaint, written or verbal, where the employee complains about or reports harassing or discriminatory behavior to managers or HR. By making that report or complaint, the employee has made a “protected complaint.”
What is a Protected Complaint for South Carolina Employees?
But why does that matter? Well, it matters because an employee can only bring a claim for retaliation if the employee has engaged in protected conduct by making a protected complaint. Not every complaint is protected. Employees in South Carolina workplaces are often subjected to some pretty awful working environments, including bad managers, difficult co-workers, dismissive bosses, and bullies all around. But just because a workplace is terrible does not automatically mean that the workplace behavior or environment is illegal. The negative behavior towards an employee must be motivated by an illegal reason: the employee’s age, race, sex, national origin, religion, or disability (under Title VII of the Civil Rights Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act), among other options.
So what type of complaint is enough to count as a protected complaint? Generally, the complaint needs to raise specific allegations that the employee is being treated differently or being harassed BECAUSE OF the employee’s protected characteristics (age, race, sex, etc.). A vague complaint about unfair treatment or about a difficult co-worker or boss likely will not be enough to trigger that protection against retaliation.
Other examples of protected activity includes complaining about unpaid overtime or minimum wages owed under the Fair Labor Standards Act, either complaints to management or complaints to the U.S. Department of Labor; or complaining to the S.C. Department of Labor, Licensing, and Regulation about unpaid wages; complaining about unsafe working conditions to management under the National Labor Relations Act; discussing the terms and conditions of employment, including wages, with your co-workers; requesting an accommodation under the ADA; or requesting medical leave under the Family and Medical Leave Act. There are others as well, so if you’re not sure, you can always reach out to a South Carolina employment lawyer for clarification.
What are the Best Ways to Make a Protected Complaint?
If I’m talking with an employee who is in the midst of dealing with discrimination or harassment in the workplace, I typically give the following advice on how to best report the illegal behavior to the company and to protect yourself against retaliation:
(1) Make the complaint in writing to Human Resources. I don’t know how many potential cases I’ve seen where the employee made verbal complaints only to management or HR, and the company denies any knowledge of those complaints. If the complaint is not in writing or recorded on audio or video, then you can expect the company and management to deny it.
(2) Email the complaint from your personal email account. If you send the complaint only from your work email without otherwise making a copy, then your only copy remains on the company’s email system, which you would lose access to if you get terminated in retaliation.
(3) Provide the specific details about the harassment, including dates, witnesses, and supporting documents. HR is supposed to investigate these types of claims, and although you can fully expect the company to come back and say that they couldn’t corroborate anything in your complaint, you should at least provide evidence where available for HR to look at.
What Happens if the Company Retaliates Anyway?
Once you’ve made the protected complaint, then you would have a legal claim for retaliation if the company takes any adverse employment actions against you, such as termination, demotion, suspension, or reduction in pay or hours. I often see employees who historically performed extremely well for the company suddenly get hit with write-up after write-up right after they file a protected complaint. Or the employee gets placed on a performance improvement plan with unreasonable or impossible goals to achieve, clearly designed to make them fail and provide a justification for the ensuing termination.
For most retaliation claims under Title VII, the ADA, or the ADEA, the employee must file a Charge of Discrimination with the Equal Employment Opportunity Commission within 300 days of the retaliation, before the employee can bring a lawsuit. Your attorney can draft and file the Charge for you. Other retaliation claims, like for whistleblower retaliation under the SC OSHA statute, require a South Carolina employee to file a complaint within 30 days of the retaliation. Under the Family and Medical Leave Act, an employee can immediately file a retaliation lawsuit in state or federal court and does not have to file with a state or federal agency first.
Employees who have been unlawfully retaliated against can seek damages incurred as a result of the retaliation, including lost wages, lost benefits, emotional distress damages, punitive damages, and attorney’s fees. A South Carolina employment lawyer can help guide you through the process of making a protected complaint and dealing with the fall-out of such a protected act, so if you are experiencing this type of illegal conduct by your employer, you should speak with an employment lawyer immediately to best protect your job and your legal rights.
