Are There Anti-Retaliation Protections for Ex-Employees?

Retaliation is a common concern for employees who report workplace discrimination or participate in an investigation. However, even after you leave a position to work elsewhere, your former employer may continue to take retaliatory action against you. While you may assume that employment laws only protect active workers, this is not the case. New Jersey has some of the strongest worker protection laws in the country. Employers are prohibited from retaliating against current and former employees for exercising their legal rights, even after they are no longer employed by the company.

If you have been retaliated against by your former employer for engaging in a protected activity while you were employed, do not hesitate to contact an experienced employment lawyer.

What Is Retaliation in the Workplace?

“Retaliation” occurs when an employer takes negative action against an employee for engaging in legally protected activity. The following are examples of protected activities:

• Reporting workplace discrimination or harassment
• Filing a complaint with a government agency
• Participating in a workplace investigation
• Serving as a witness for another employee
• Reporting unsafe work conditions
• Requesting reasonable accommodation for a disability
• Taking legally protected leave
• Opposing conduct that violates employment laws

Examples of “retaliation” include the following:

• Termination, demotion, or transfer
• Negative performance review
• Pay cut or denial of a salary increase
• Being excluded from important meetings or projects
• Increased scrutiny or hostile treatment

How Do Employers Retaliate Against Former Employees?

It is a common misunderstanding that retaliation only occurs while an employee is still employed. However, a vengeful ex-boss can try to make it difficult for you to seek employment elsewhere, simply because you participated in a protected activity. The following are some of the most common ways that ex-employers retaliated against former employees:

• Malicious job references. This is the most common type of retaliation against former employees. While your former employer is not required to provide a glowing recommendation to a prospective employer, they may not intentionally provide false information about you simply because you previously reported discrimination or exercised another legal right. For example, if your former employer was contacted for a reference, and they said you were dishonest, made frequent mistakes, and violated company policies, this can create legal problems for the employer if the statements are false.
• Refusing to verify employment. If your former employer refuses to verify your employment when contacted by a prospective employer, this is considered retaliation.
• Blacklisting. This occurs when an ex-employer uses their power or connections to prevent you from being able to secure employment in your industry again. For example, your employer may spread damaging information about you, or contact other businesses and warn them not to hire you.
• Interference with future employment. In some cases, retaliation by a former employer is more subtle. For example, they may be slow to respond to reference requests, refuse to confirm employment history, share misleading information, or suggest that you were a difficult employee.
• Groundless lawsuits. In some cases, a former employer will use its financial resources to threaten you by filing a fake or exaggerated lawsuit. They might sue you for allegedly stealing company secrets, breaking a non-compete agreement, or damaging their reputation, even if they know they have no real case. The goal is not necessarily to win, but to intimidate you and force you to spend money on lawyers.

What Anti-Retaliation Protections Are in Place for Ex-Employees?

In the case Robinson v. Shell Oil Co., the Supreme Court unanimously held that former employees may sue under Title VII of the Civil Rights Act of 1964 to challenge retaliation by a former employer. Charles Robinson sued his former employer, Shell Oil Company, after a prospective employer received a negative reference from Shell. Robinson claimed that Shell Oil gave a negative reference in retaliation for filing a discrimination claim with the Equal Employment Opportunity Commission (EEOC). In addition to Title VII and other federal laws like the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA), the following state laws protect New Jersey employees who have been retaliated against by a former employer:

• New Jersey Law Against Discrimination (LAD). This is one of the most important state laws that protect New Jersey employees. It prohibits employers from retaliating against employees who report discrimination or file discrimination complaints, participate in an investigation, or assist others with discrimination claims.
• The Conscientious Employee Protection Act (CEPA). This is often referred to as New Jersey’s “whistleblower law.” It protects employees from reporting unlawful activities, including financial fraud, safety violations, consumer fraud, healthcare misconduct, or illegal business practices.

How Can I Prove Retaliation by a Former Employer?

It is highly unlikely that your former employer will admit that they engaged in retaliatory behavior against you. To have a successful post-employment retaliation claim, you will need to demonstrate the following factors:

• You engaged in a protected activity. You must be able to show that you complained about discrimination in the workplace, participated in an investigation, or engaged in another protected activity.
• Your employer took negative action against you. You must also show that your former employer gave you a negative reference, tried to ruin your reputation, or engaged in other retaliatory behavior.
• There is a direct connection between the two. Finally, you must show that the retaliatory behavior happened because of your protected activity. This is the most challenging part to prove. However, the following types of evidence can support your claim:
  – Timing. If your former employer gave you a negative reference days after you filed a harassment complaint and left the company, this short gap in time may suggest retaliation.
  – Inconsistencies. If you consistently received glowing performance reviews over the course of your employment, but your employer started telling people you were incompetent, irresponsible, and difficult to work with the moment you left the company, this may suggest that your employer was lying out of anger.
• Paper trails. If you have emails, text messages, or voicemails that provide evidence of retaliation, this is extremely valuable. For example, if your new employer shared that they received an email from your former employer saying, “do not hire them, they sued us,” this can help prove retaliation.

What Types of Evidence Do I Need to Prove Post-Employment Retaliation?

There are several different types of evidence that can strengthen your retaliation claim, each of which carries different weight when it comes to strengthening your case. They include the following:

• Direct evidence. This is the most valuable type of evidence, which includes emails, text messages, voicemails, or recorded statements that explicitly state retaliatory intent.
• Pattern evidence. This is when other employees who made complaints faced similar treatment, or there is a history of retaliation against whistleblowers.
• Comparative evidence. This shows that a similarly situated non-protected person was treated more favorably than you. For example, if employees without protected activity received positive references, this can support your claim.
• Inconsistency evidence. If the employer changes their explanations for negative actions, or provides contradictory reasons to different people, this inconsistency can support a post-employment retaliation claim.

What Steps Should I Take if I Experience Post-Employment Retaliation?

If you believe that your former employer is retaliating against you, you must take the following steps to ensure that your legal rights are protected:

• Collect evidence. Keep detailed copies of all communications, timelines, and witness statements.
• Avoid social media. Do not make public accusations about the retaliation on any of your social media platforms. This can negatively affect your credibility and jeopardize the outcome of your claim. In addition, your former employer’s legal team will comb through your accounts and look for posts that they can use against you.
• Ask questions. If you have experienced multiple negative responses from prospective employers, you may want to consider politely asking whether they received a negative reference from your former employer. Not every employer will answer, but some may share what your former employer said about you. Keep detailed notes about what was said, as this can be used as evidence if you file a post-employment retaliation claim.
• Consult with an employment lawyer. Retaliation claims can be complicated and challenging to prove, particularly if you no longer work for your employer. It is highly recommended that you contact an experienced employment lawyer, who will review the evidence, determine whether your legal rights were violated, and recommend the best legal course of action.

Our Skilled Cherry Hill Employment Lawyers at The Gold Law Firm P.C. Represent Clients Who Have Experienced Post-Employment Retaliation

If your former employer retaliated against you after you no longer worked for the company, it is in your best interest to contact our Cherry Hill employment lawyers at The Gold Law Firm P.C. We will evaluate the details of your case, conduct a thorough investigation to determine whether your former employer violated your rights, and assist you with the claims process. Our dedicated legal team will address any questions or concerns you may have, and negotiate the best possible settlement outcome. To schedule a free consultation, call today at 215-569-1999 or contact us online. With office locations in Pennsauken, New Jersey, and Philadelphia, Pennsylvania, we proudly serve clients in the surrounding areas.