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How to prove illegal retaliation in New York

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Another_Jeremy

Junior Member
What is the name of your state (only U.S. law)? New York

I worked in a classical sheet music store at a prestigious music school for two years. The two top managers (Merchandising person, Operations Manager) had extensive experience in sports retail, but not experience with classical music at all so they hired musicians for their knowledge. The Operations Manager was totally incompetent. In addition to not even knowing where anything in the store was or being able to answer the most rudimentary questions about our services, he sat at his computer on Facebook and Sportcenter all day and openly treated workers disparately. One girl was terminated for coming into work late on a day for which she had a Doctor's appointment, and had notified the managers of this well in advance but was still scheduled.

After being made full time the situation in the store got very weird. An employee whose responsibility was to purchase text books for the store, was conscripted to improve the website in addition to his other duties: too much for one worker. Apparently he didn't rise to the challenge because the Merchandising Manager started to dress him down on the regular in sight and sound of the whole staff and even customers. Everyone would worked in the back office would leave because no one could work with her screaming. She also drank sometimes, which doesn't offend me or anything, but it was weird because we could never read the environment. Is it laid back or not? Also, it doesn't seem like a good idea to just drink on the job. As time went on, the operations manager became more bold. He would leave hours early and close one of the two cash registers several hours before the store was closed and leave us short staffed, and when he was there he didn't even pretend to do any work. He would schedule himself every Sunday because it was a 5 hour work day and full time workers got back for 8, and he would sit in the back on the computer all day because the Merchandising Manager wasn't there on Sundays. He left money out in the open, he moved books and forgot where he put them and we would have to reorder them, he rearranged sections of the store that we would then have to go rearrange, etc.

So we got fed up with the craziness. Myself and three colleagues went to HR with a list of typed issues and lodged a formal complaint against our bosses. A month later we received an email telling us that since our issue was related to our department, we needed to take it up with the head of our department; as in the people we had just filed the formal complaint against. About three months later, one of my coworkers was fired for unspecified "errors" even though the position he had was made full time 6 months previous and had essentially been created for him because of the job he was doing. My other two colleagues quit a few months after he was terminated, and I quit a month ago.

After the non response of the HR lady to our formal complaint, I began recording my interactions with her and my recording of my exit interview is a real gem. In it she informed me that:
1. In regard to a person being screamed at, she's a realist and not everyone will get along.
2. That me requesting formal notification regarding the resolution of our formal complaint was "not real life," and that it's normal to just be informed that the issue has been resolved with no further explanation.
3. That it's to be expected that when someone lodges a complaint against a supervisor, that the supervisor in question is the one who will determines the outcome.
I caught her on several points, particularly that the school has no formal protocol for lodging complaints or escalating them if they are not resolved and that she hadn't spoken to anyone else in the store about the scenario and had left it to our boss to be the arbiter of her own justice. She said "they" took the appropriate steps, but couldn't say what any of the steps were or what the result was.

What are the odds that my friend who was fired for "errors" could win if all of the grievance lodgers, the fired "I went to the doctor" girl, the guy screamed at who quit, and several other current and former employees stated under oath that the Merchandising Manager treated workers abusively, and that after we raised the concerns to the HR department he was quickly terminated despite having no record or incompetence after making an internal complaint against the very person who fired him? What would we have to prove in court to show that this was retaliatory? I know that New York is an at will state, but is it illegal to fire someone for reporting a bullying work environment? And what of HR telling us to take it up with the people we had just complained against? Isn't that a conflict of interests? I've also read that HR staff can be held personally liable in New York and New Jersey if their handling of an issue is inadequate. Any thoughts would be appreciated.
 


cbg

I'm a Northern Girl
In NY, as well as in most other states, "retaliation" is only illegal if your coworker complained about the violation of a LAW. Not a company policy. Not an internal grievance.

So. What LAW (Federal, state or local) did the manager violate and your coworker subsequently reported?
 

eerelations

Senior Member
Illegal retaliation is when an employer penalizes an employee for reporting the employer's illegal activities to the relevant judicial authorities. Retaliating for anything else is legal.

Nothing in your post indicates that your employer was doing anything illegal. It is perfectly legal to hire incompetent management staff. The following are all perfectly legal activities:

firing an employee for being late, even if she had notified management she was going to be late;
assigning new and different duties to employees is legal;
chastising employees in front of others is legal;
drinking alcohol on the job;
leaving work early and short-staffing the workplace;
closing cash registers before the store closes;
scheduling oneself to work Sundays;
sitting in the back room staring at a computer all day; and
improperly arranging the goods in a store.​

These things are all legal because there are no laws anywhere in the US prohibiting them. So again, your former employer has not broken any laws. (And even if your former employer had broken laws, HR is not a "relevant judicial authority." Nor are supervisors.)
 

Another_Jeremy

Junior Member
In NY, as well as in most other states, "retaliation" is only illegal if your coworker complained about the violation of a LAW. Not a company policy. Not an internal grievance.

So. What LAW (Federal, state or local) did the manager violate and your coworker subsequently reported?
He complained about illegal workplace harassment against a coworker.
 

cbg

I'm a Northern Girl
(In New York, complaints made internally are also protected - not just complaints made to the relevant authorities)

Jeremy, nothing you have posted suggests ILLEGAL harassment of your friend. What actions by the boss are you seeing as illegal?
 

Another_Jeremy

Junior Member
(In New York, complaints made internally are also protected - not just complaints made to the relevant authorities)

Jeremy, nothing you have posted suggests ILLEGAL harassment of your friend. What actions by the boss are you seeing as illegal?

"Workplace harassment, often called a “hostile work environment,” is only illegal if it is so severe or pervasive (frequent) that it effectively changes the terms and conditions of your employment. So, for example, one extremely bad act of harassment can be illegal. But more commonly it is a number of relatively minor actions over a period of weeks, months, or years that combines to create a hostile work environment."

Is this accurate? I found that description on a website for the Nirenberg Law Firm.

After the debacle with the website he was screamed at, referred to as "the *******," denigrated in group meetings regarding store policies, openly insulted in front of other workers, and treated with so much disdain that he mentioned that it was difficult for him to go to work every day. Even the work study students who were there only a few hours a week commented on the hostile and tense environment in the store. We reported it because it was clearly deleterious to him psychologically. He was on edge and upset for weeks before we finally contacted HR. Does that rise to the degree of illegality, or would we also need to show WHY she was screaming, insulting, bullying him etc.
 

cbg

I'm a Northern Girl
It's accurate as far as it goes, but it is incomplete. It's not an HWE unless the adverse treatment is BASED ON the employee's membership in a group protected by law.

Unless he was being screamed at, etc. BECAUSE he was black/white/male/Muslim/Jewish/Christian/Hispanic/Asian/Mexican/Arabian/Norwegian/Caucasian/over 40 etc., and there is valid and supportable evidence to support that, then it is not an HWE or illegal no matter how long it goes on, how bad it was or what effect it had on him.
 

OHRoadwarrior

Senior Member
Sorry jeremy, You and your friend are insignificant cogs in the business machinery. Aside from Federally protected rights, you have little recourse. Your boss is entitled to yell at you every day if he wishes. Put on your adult clothes and get another job.
 

Another_Jeremy

Junior Member
(In New York, complaints made internally are also protected - not just complaints made to the relevant authorities)

Jeremy, nothing you have posted suggests ILLEGAL harassment of your friend. What actions by the boss are you seeing as illegal?
It's accurate as far as it goes, but it is incomplete. It's not an HWE unless the adverse treatment is BASED ON the employee's membership in a group protected by law.

Unless he was being screamed at, etc. BECAUSE he was black/white/male/Muslim/Jewish/Christian/Hispanic/Asian/Mexican/Arabian/Norwegian/Caucasian/over 40 etc., and there is valid and supportable evidence to support that, then it is not an HWE or illegal no matter how long it goes on, how bad it was or what effect it had on him.
How does one prove WHY a person is being screamed at? If you scream at workers because they're black, couldn't you always deny that's the reason and say it's because they're incompetent?
 

Another_Jeremy

Junior Member
Sorry jeremy, You and your friend are insignificant cogs in the business machinery. Aside from Federally protected rights, you have little recourse. Your boss is entitled to yell at you every day if he wishes. Put on your adult clothes and get another job.
The question is whether or not it is illegal retaliation to fire someone for formally addressing the abusive treatment of another employee. As I said in the post, none of us work there anymore. Did you come to the thread to offer legal advice or just to patronize me?
 

>Charlotte<

Lurker
The question is whether or not it is illegal retaliation to fire someone for formally addressing the abusive treatment of another employee. As I said in the post, none of us work there anymore.
Simply put, no. Not necessarily. It depends on what the "abusive treatment" is. Employment laws that address what constitutes a hostile work environment are often misunderstood to include provisions for obliging employers to be generally nice. Or fair. The reality is, your managers can be as unreasonable or as unfair or as unpleasant as they choose to be and it's perfectly legal as long as the reasons for their actions aren't based on a protected characteristic such as race, religion, sex, etc. From what you've posted, it doesn't sound like any of you were treated the way you were treated for any other reason than your manager is a jerk. Being a jerk isn't illegal. Therefore, you were not formally addressing an illegal action. Therefore, there was no illegal retaliation. Congratulations, you just became one of the small percentage of the American workforce who now understands that what most people believe about employment law is myth.
 

>Charlotte<

Lurker
Unless we choose to sue under the statute of limitations regarding this potentially tortious action. :cool: Troll.
There's nothing to sue for. Neither the managers nor the employer did anything illegal. Again, not all "harassment" is illegal. You were not fired for reporting an illegal action. You were fired for complaining about a manager who was a jerk. There is a difference. This was not a wrongful termination.
 

Another_Jeremy

Junior Member
There's nothing to sue for. Neither the managers nor the employer did anything illegal. Again, not all "harassment" is illegal. You were not fired for reporting an illegal action. You were fired for complaining about a manager who was a jerk. There is a difference. This was not a wrongful termination.
Hi Charlotte. I wasn't fired. My friend was. I quit. But thank you for your attempt honest advice.
 
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