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The elements necessary to prove employer retaliation

It is against both state and federal laws for an employer to retaliate against a whistleblower. Unfortunately, it is still prevalent.

When the Occupational Safety and Health Administration (OSHA) investigates retaliation claims, there are specific elements they must prove. Here is a quick review of those essential factors.

1. The whistleblower's report and statement

OSHA will likely interview the whistleblower to gather information, such as:

  • Details of the original report
  • Their evidence of retaliation

This step is where OSHA determines whether to move forward with the investigation. It is important to note that OSHA investigators are neutral parties. They do not favor either the whistleblower or the employer.

2. The employer's knowledge of the report

It is critical to prove that the employer knew about the whistleblower's actions. Employer retaliation is a response to an employee complaint or report. That is why the employer must have known about the whistleblowing for any of their misconduct to be retaliation.

Any misconduct would still violate an employee's rights, but it might not be retaliation. Therefore, OSHA must find evidence that the employer knew about the report to continue an investigation of retaliation. Then they must prove that this knowledge motivated the employee's misconduct.

3. The act of retaliation

Of course, the employer's actions are an essential factor to prove a retaliation claim. Whistleblowing is a protected act. So, it is against New York law for an employer to retaliate by:

  • Docking an employee's salary
  • Demoting or terminating an employee
  • Blacklisting an employee

Acts of retaliation may not always be as evident as those listed. However, OSHA will usually pursue an investigation if these three elements add up in a claim.

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