Work in Progress is a column about finding your way in the working world. Have a question for Rainesford Stauffer? Send it to [email protected].
This article is part of In Session: The Teen Vogue Lesson Plan. Find the full lesson plan here.
"I didn't receive guidance on healthy and unhealthy signs of working relationships, what is/is not okay, what workplace retaliation means, and how [all of] these turn on power dynamics.”
When thinking about this comment, I realized how many versions of it have appeared in group chats with friends and come up in conversations with my old colleagues just in the past couple of weeks. There was the friend whose scheduled promotion was indefinitely postponed after she mentioned that her coworker’s salary was significantly higher for the same role. Someone else wondered if they were being retaliated against when their wages were withheld after they asked to increase the rate on a freelance project. There were so many examples of harassment, overwork, and issues around pay, but a common thread was that no one knew, technically, what counted as workplace retaliation, let alone what to do about it.
Recognizing what is officially retaliation and what is generally a toxic workplace is tricky, especially since they can overlap. And not knowing the difference feels like another obvious advantage for exploitative workplaces, because if we don’t know how to recognize retaliation, we’ll assume this is just what work is.
But there are real differences to unpack. “The workplace in modern America is a terribly imbalanced place when it comes to the power dynamic,” says Benjamin Dictor, a labor lawyer. (Disclosure: Dictor is counsel for the News Guild of New York, which represents workers at several publications owned by Teen Vogue publisher Condé Nast.) “Unfortunately, there's no law that says that your boss is not allowed to be an asshole.” That means not everything they do is going to be an act of unlawful retaliation.
Retaliation, to put it simply, occurs when an employer — including representatives of an employer, like a manager, supervisor, or human resources staffer — takes adverse action against an employee as a result of them engaging in protected activity, Emily Andrews, director of education, labor & worker justice at the Center for Law and Social Policy, tells me. “Protected activity” includes: asking to take the vacation your contract guarantees; requesting payment of wages; as well as requesting accommodation for a disability; asking about salary information, and more.
When a worker engages in protected activity and the boss or manager takes an “adverse action,” that’s considered unlawful retaliation. Retaliation includes: docking wages; making a worker’s job more difficult; engaging in abusive verbal or physical behavior; threatening to make reports to authorities; moving a worker to a less desirable position or schedule, among other examples.
Retaliation has to be in response to a worker's protected activity. To tell if something is an unlawful act of retaliation, Dictor says, the simplest pattern to look for is: Was there a protected act, and was there then adverse employment action?
For example, if you ask for a raise by yourself and your company doesn’t want to give it to you, your boss might be completely within their rights to fire you. (Seems bad, right?) However, if you and even just one other coworker unite and go to the boss to ask for a raise together, legally, the boss can’t retaliate against you; that becomes Protected Concerted Activity under the National Labor Relations Act (NLRA).
Our organizing rights come from the NLRA, part of New Deal legislation passed in 1935, Andrews tells me. For historical context, Andrews points out that this law is “completely seeped in the racism of our economic system” and excluded domestic workers and farm workers — which has repercussions we still live with today. “We see this resulting in how we treat independent contractors,” Andrews says. Essentially, there are two classes of workers, she explains: workers protected by the NLRA, who have the right to organize and are protected by the Fair Labor Standards Act; and workers who fall outside of that, including independent contractors and gig workers. “The right to organize is not spread evenly across workers,” she says.
Organizing is central to navigating workplace retaliation and to combating the power dynamics that come with attempting to defend yourself to the people who sign your paychecks. “In my experience, employers are less likely to violate workers' rights when there's a union," Dictor says, "because they know that they don't get to benefit from the massive imbalance of power that exists in the absence of a union.”
Despite incredible energy in the labor movement recently, union membership rates actually declined last year, part of a decades-long trend, says Andrews. But in 2020, she notes, union membership rates did tick upward, a result of nonunion service sector workers losing their jobs during the pandemic and union workers being better positioned to protect their employment. At least part of the reason for the decline outside of 2020, some reports detail, is that companies have been effective in intimidating or discouraging workers from joining a union. That’s one reason we have to strengthen labor laws and protect worker rights; another reason is to protect independent contractors themselves.
Most federal laws that protect workers from harassment and discrimination on the job — including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act — are limited to employees, Andrews explains: “When folks are classified as independent contractors, companies are able to avoid legal responsibility for their workers.” It’s not hard to see how inherently problematic that is, and how it opens workers up to retaliation that can make them feel powerless.
A handful of states have adopted antidiscrimination protections specifically for independent contractors. (A Better Balance, an advocacy group that provides legal services to workers, outlines a 50-state survey detailing the extent to which independent contractors are covered by laws prohibiting discrimination in employment.) A report from the Urban Institute outlines the necessity of policy infrastructure that reimagines workplace protections for independent contractors, including how “a presumption of retaliation” would empower workers to raise concerns about wage and hour violations, health and safety, and antidiscrimination laws.
Now that we know how retaliation is generally defined, what do you do when you are being retaliated against?
Contact a union — even if you aren’t in one. Dictor says workers who think their rights have been violated should reach out to a union in their industry — yes, even if you aren’t in one. “I think workers can be surprised how willing unions often are to help connect workers in the industries that they represent with resources to defend their rights at work,” he says. They typically want workers across the industry to benefit from high standards and protections.
Document everything. If you’re experiencing poor treatment that could be considered retaliation, keep records of what’s happening, Andrews says: “Retaliation comes when [workers] exercise their own rights.” Keep track of what rights you’ve made use of (for example, asking for time off), the date, who you asked, and what happened. Most companies have HR departments, but the caveat there, Andrews advises, is that HR is not a neutral entity; it is part of any company’s hierarchy. To that end…
Unionize. “I think there's power in numbers,” Andrews says. “If others are experiencing this problem, get together with your coworkers, talk about it together, and I encourage folks to think about joining a union.” With retaliation against employees, the Department of Labor’s Wage and Hour division covers antiretaliation protections related to minimum wage, overtime pay, child labor requirements, family and medical leave, migrant and seasonal worker protections, and more. For useful guidance from the Department of Labor on retaliation, click here. For retaliation against union organizing or collective action — protected activity under the NLRA — workers can file complaints with the National Labor Relations Board through their union or as an individual.
Look inside your workplace. Edgar Ndjatou, executive director of Workplace Fairness, says the organization's website outlines a lot of information on worker rights, “and depending on where you are, your city, county, and/or state might have their own discrimination laws and commissions.” In addition, asking about employee manuals and company policies are important ways to familiarize yourself with your rights at work.
Work to help pass the PRO Act. Shifting the larger structures matters. Andrews explains that passing the PRO Act will classify more workers as employees by using a stricter test for independent contractors, which would move large numbers of workers back under the National Labor Relations Act. The Pro Act would also create additional protections, add increased fees for violations of the NLRA, and expedite the organizing and contract processes.
Seek legal help. “It’s unfortunate that I would have to say that one of the things you should do is potentially call a lawyer, but we live in a hyperlegalized society,” Dictor says. However, he adds, it doesn’t have to be as daunting or expensive as it sounds, pointing out that many employment lawyers work on contingency and can help define whether what you’ve experienced is retaliation. You can contact your local bar association and ask for a referral, or contact the National Employment Lawyers Association.
Stay up-to-date with the politics team. Sign up for the Teen Vogue Take
