The most common workplace legal issues arise from employment discrimination, harassment, wage and hour violations, retaliation, workplace safety concerns, wrongful termination, licensing and credentialing issues, patient confidentiality and HIPAA violations, breach of contract, and a lack of disability accommodations. Of all the legal issues listed, the Equal Employment Opportunity Commission (EEOC) lists retaliation and reprisal as top offenders, followed by age and disability discrimination.
Retaliation often occurs when employees voice their grievances and results in derogatory actions such as termination, demotion, exclusion, and other material adverse reactions. Activities which often lead to employer retaliation are resisting sexual advances and/or protecting others from sexual misconduct, requesting accommodations for physical, mental, or religious accommodations, grievances regarding unfair pay practices, advising others of their equal employment opportunity (EEO) rights, encouraging colleagues to substantiate support for an EEO claim, refusing to obey perceived discriminatory orders, or by participating in passive resistance and/or allowing others to express opposition.
Retaliation may occur in the following forms:
- Untruthful performance reviews
- Reprimanding the employee with demotion, termination, and/or exclusion
- Transfer of an employee to a less desirable position
- Threatening to make, or make reports to authorities (such as to immigration)
- Engaging in verbal or physical abuse
- Spread false rumors, treat family members negatively (cancelling spousal contracts)
- Increase in scrutiny
- Making an individual’s work more difficult (imposing an unreasonable schedule)
An example of retaliation I encountered while researching this topic previously involved a food company who employed foreigners with limited English. The workers were continually verbally and physically harassed with unwelcome sexual advances including groping, making comments about physical appearances, and asking about sexual preferences. It occurred with women and men alike, and when the workers filed several complaints with management their concerns went unheard. As a result, the employees who initiated complaints were wrongfully terminated or resigned due to a hostile work environment. The food company was eventually found guilty of harassment, unethical conduct, and for retaliation. In this situation, I believe the employees and management personnel who allowed this behavior not only discriminated on these victims because they were foreigners, but they also used the fact they spoke poor English to ‘turn a blind eye’ to their complaints.
The laws most commonly violated by retaliation are Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Equal Pay Act (EPA), Occupational Safety and Health Act (OSHA), Family and Medical Leave Act (FMLA), Whistleblower Protection Laws, and National Labor Relations Act (NLRA). Lawsuits, financial penalties, compensatory damages, punitive damages, and back pay may result if found guilty of such violations. Additionally, the reputation of an organization may be at stake by creating mistrust potentially leading to operational disturbances.
In the event a resolution cannot be made internally when allegations of misconduct have occurred, the EEOC can initiate an “alternate dispute resolution (ADR)” to quickly mediate the dispute confidentially and quickly. Mediation is voluntary and involves a neutral third-party to help reach an amicable agreement. If the mediation process is refused, or an agreement cannot be made during the ADR process then the EEOC will proceed to the next step. A charge of discrimination must be filed with the EEOC in person, by mail, or through a public portal system. This charge must be filed within 180 days of the offense, or within 300 days if a state or local anti-discrimination offense has occurred synonymously. The EEOC will review the allegations and conduct interviews, request documents, and may visit the work site to determine if a valid claim exists. Once the investigation is complete the EEOC will decide and first try to settle the dispute between the employer and the employee first. If a resolution cannot be reached, the EEOC may issue a “Notice of Right to Sue” which would allow an employee to sue the organization independently.
There are some disadvantages in the rights of workers employed in organizations with less than 15 employees, since Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) require at least that. The Age Discrimination in Employment Act (ADEA) applies to organizations with at least 20 employees. The Family and Medical Leave Act (FMLA) requires 50 or more employees to be applicable within a 75-mile radius. The laws which do not have a minimum requirement for the number of employees are the Equal Pay Act (EPA), National Relations Labor Act (NRLA), and Occupational Safety and Health Act (OSHA).
In the dental profession the law we pay the closest attention to is OSHA, we attend monthly meetings as well as an annual meeting from an OSHA advisor to ensure we are meeting the current OSHA guidelines to protect the safety of employees and of patients. The dental profession lacks the protections seen in many larger healthcare organizations and employers can essentially treat grievances as they see fit. Very rarely do employees exercise their rights either because they are not aware of them, or they simply feel powerless in voicing their grievances. In my current position as a dental professional, I believe the most pressing issue we are facing currently is unequal pay. We are forbidden to speak openly about how much we are compensated, and it is highly frowned upon to share compensation details. Employees refrain from sharing in fear of retaliation. Moving forward in my future career and in my current career, I plan to advocate for employee rights to empower myself and others to take a stand for what is right.