Protected Activity: When is a workplace complaint legally protected?

According to the Equal Employment Opportunity Commission (EEOC), retaliation is the most frequently alleged basis of discrimination, and retaliation claims are certainly one of the claims our firm files most often on behalf of our clients. However, not all statements or complaints by employees are legally protected under the major federal anti-discrimination statutes: Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA), and Age Discrimination in Employment Act (ADEA).

The first hurdle in establishing a retaliation claim is showing that the employee engaged in a protected activity. This requirement leads to two questions: What is protected activity? And perhaps more important, what is not considered protected activity under the law?

As a starting point for answering the first question, the EEOC has issued the following non-exhaustive list of what constitutes protected activity:

  • Filing or being a witness in an EEOC charge, complaint, investigation, or lawsuit;
  • Complaining of discrimination to a supervisor or manager (I would add complaining of discrimination to Human Resources to this list);
  • Participating in an investigation of discrimination or harassment by your employer;
  • Requesting accommodations for a disability or for a religious practice;
  • Resisting sexual advances in the workplace, or intervening to protect coworkers from the same;
  • Refusing to follow orders that would result in discrimination; and 
  • Asking about salary information of managers or coworkers to uncover potentially discriminatory wages.

Most of these are relatively straightforward, but I frequently get pushback from employers when my client’s retaliation claim is based on an internal complaint of discrimination. As I said above, not all complaints are legally protected. For example, complaining to Human Resources or coworkers that the supervisor is mean, hard to get along with, or just simply doesn’t like the employee is not going to be considered a protected activity under the law. However, if instead the complaint is that the supervisor doesn’t like the employee because of his race, age, gender, disability, etc., that would be considered a protected activity for retaliation purposes. A complaint that the employee doesn’t agree with a disciplinary action or performance evaluation is not going to be considered a protected activity, but if the employee’s complaint connects the disciplinary action or performance evaluation to a prior complaint of discrimination, that would be an additional protected activity by the employee.

Another common complaint I see employees making to their employer is that their manager/supervisor treats them differently than their coworkers. For example, an employee may complain that his supervisor disciplines him more frequently than others or is harder on him than his coworkers. Complaints like this fall into a bit of a gray area on the issue of protected activity. In this situation, it’s important to consider whether the particular workforce is diverse with respect to race, gender, etc., or predominated by one more than the other. For example, a female firefighter who works at a fire station with only male firefighters who complains that she is being treated differently will have an easier time establishing that she engaged in a protected activity than a female employee who works in an office that is equally staffed with men and women.

What is the key takeaway from all of this? The more specific the complaint of discrimination is the more likely it is to be viewed as a protected activity under the relevant anti-retaliation statutes.  

If a person feels they have been subjected to discrimination or retaliation, they should consult with an attorney regarding potential representation immediately, especially because urgent time limitations may affect the potential claims.

  • Elizabeth Millender

The Pregnant Workers Fairness Act Strengthens Protection for Pregnant Employees

The Pregnant Workers Fairness Act (PWFA), effective June 27, 2023, requires employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions.[1] Covered employers” include private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations.

How does the PWFA add to the protections already in place?

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, prohibits pregnancy discrimination, meaning that an employer cannot treat an employee in a disparate manner based on their pregnancy. However, receiving accommodations under Title VII has been difficult for pregnant women because a pregnant woman must show that her employer accommodated a coworker in the same or similar position.

The Americans with Disabilities Actof 1990 (ADA) prohibits discrimination based on a disability, including pregnancy-related disabilities like gestational diabetes. However, pregnancy is not a disability under the ADA, and many pregnancy-related symptoms and conditions are not covered.

The House Committee on Education and Labor found the protections provided under Title VII and the ADA “are insufficient to guarantee pregnant workers reasonable accommodations.”[2] The Committee wrote, “No worker should have to choose between their health, the health of their pregnancy, and the ability to earn a living.” Id.

The PWFA strengthens federal protections for pregnant employees by requiring covered employers to provide reasonable accommodations for limitations related to pregnancy, childbirth, or related medical conditions. The employer must provide the reasonable accommodation, unless the accommodations would create an “undue hardship,” meaning an unreasonable expense or effort, from the employer. Possible reasonable accommodations include sitting or drinking water while working, providing closer parking, flexible hours, extended break times, and leave, and being excused from strenuous activity or activities with dangerous exposure. Id.

In addition to requiring reasonable accommodations, the PWFA states it is unlawful for an employer to:

  1. Require an employee to accept an accommodation without engaging in an interactive process with the employee regarding accommodations;
  2. Deny employment opportunities based on an employee’s need for reasonable accommodations under the PWFA;
  3. Require an employee to take leave if another reasonable accommodation can be provided;
  4. Retaliate against an employee for exercising their rights under the PWFA; or
  5. Interfere with an employee’s PWFA rights.

Many states, including South Carolina, have state laws prohibiting pregnancy discrimination and mandating reasonable accommodations.[3] The PWFA adds to more protective local, state, and federal laws; it does not replace them. Pregnant workers may be entitled to accommodations under the PWFA, Title VII, the ADA, FMLA, FLSA, and state law.

If a person feels they have been subjected to discrimination, retaliation, or denied accommodations, they should consult with an attorney regarding potential representation immediately, especially because urgent time limitations may affect your claims. 

-Beth Bowen


[1] Pregnant Workers Fairness Act.

[3] See, SC Code § 1-13-80(A)(4); S.C. Code Ann. 1-13-30(T)(2)(b).

Federal Employees and the EEO process

Like state and/or private sector employees, federal employees – whether it be government, agency, or military – also have equal employment protections. Seeking such protection, however, works very differently…

As a principal matter, federal employees do not directly file their complaint(s) with the Equal Employment Opportunity Commission or state commission, if applicable. Rather, they must first contact an EEO Counselor within their designated employer – every federal employer has some form of an equal employment complaint processing branch. While the filing timeline for any employee to file a discrimination complaint is already limited, it is even more the case for federal employees. In fact, a federal employee must make contact with an EEO counselor within 45 days of the date of the alleged discriminatory matter; failure to do so is likely a waiver of that claim.

The EEO counselor has 30-days (that may be extended to 60) to attempt to reach a resolution of the complaint (i.e. informal counseling). Alternatively, the employee may be able to seek resolution through an alternative dispute resolution program, which may take up to 90 days. Regardless, if informal counseling/mediation is unsuccessful, the EEO counselor will issue a notice of right to file a formal complaint. The employee then has 15 days to file a formal EEO complaint.

Formal EEO becomes an even more complicated process, which includes: (1) an investigator being assigned; (2) a record of investigation (ROI) being prepared; and (3) the right to request a hearing before an EEO Administrative Judge or to receive a Final Agency Decision without a hearing. Requesting a hearing before an EEO Judge as well as directly requesting a Final Agency Decision without a hearing both have pros and cons; there are also specific timelines applicable to both options. Both avenues also have various appellate processes should you disagree with the findings.

Ultimately, federal EEO is a complicated process that is extremely time sensitive and fact specific. If you are a federal employee who has concerns that you have been discriminated against, I recommend consulting with a lawyer as soon as possible. At CBPH, we help federal employees navigate the EEO system.

Best, Ryan  

The Significance of OSHA Whistleblower Deadlines

Employees file a whistleblower complaint with the Occupational Safety and Health Administration (“OSHA”) if the employer retaliates because of a protected activity relating to workplace safety or health, environmental, cargo containers, airline, commercial motor carrier, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation, railroad, maritime, consumer product, financial reform, consumer finance, mortgage regulations, and securities. Many of our clients are not aware of the laws that require that complaints be filed with OSHA within a certain number of days after the alleged retaliation.

All of the whistleblower laws enforced by OSHA have short deadlines to file a whistleblower complaint. Many of the laws have a 30-day deadline. If you or someone you know has been terminated after they opposed any type of action by their employer that they believe was unlawful, they should immediately contact an attorney. It sometimes happens that people consult with us after too much time has elapsed after termination. Some employees lose viable claims because they waited too long to act.

I have represented clients under nearly all of the OSHA enforced statutes. The law that I most frequently represent clients with OSHA claims is the Occupations Safety and Health Act (“OSH Act”). The OSH Act protects workers who complain to their employer, OSHA, or other government agencies about unsafe or unhealthy workplace or environmental conditions. The OSH Act is one of the laws with the shortest deadlines to file a whistleblower complaint. An aggrieved employee must file a complaint with OSHA within 30 days of the alleged reprisal action, i.e. termination.

There are a few whistleblower laws that do not arise frequently because of the niche nature of the law. For example, I have not yet represented a client with claims arising under the Asbestos Hazard Emergency Response Act (AHERA). AHERA and its regulations require public school districts and non-profit schools including charter schools and schools affiliated with religious institutions to inspect their schools for asbestos-containing building material. To timely preserve an AHERA whistleblower claim, an employee who believes that he or she has been retaliated against in violation of AHERA must file a complaint within 90 days from the time that the adverse action is communicated to the employee.

The cardinal rule is that an employee, believing they were subjected to retaliation, should not wait to consult with a lawyer. I recommend scheduling a consultation as soon as possible.

  • Shannon Polvi

The Basics of Arbitration

Arbitration agreements can have a significant impact on an employee’s ability to enforce their legal rights in the workplace.  Unfortunately, many workers are unaware of what arbitration is, whether their employment disputes are subject to arbitration, and how arbitration can affect them.  At CBPH, we handle arbitration regularly and help employees navigate the murky waters that arbitration can bring.

What is arbitration?

Simply put, an arbitration agreement is an agreement between an employee and an employer to handle any legal disputes in the workplace outside of the traditional court systems.  Instead of filing a lawsuit and having a case heard before a judge and jury, arbitration agreements direct employees to file claims to a neutral arbitrator, who acts as a quasi-judge and jury.

What is an arbitrator?

Arbitrators are simply lawyers, who usually have specific expertise in the field of law that is at issue in the dispute.  Arbitrators are licensed by the South Carolina Bar Association and are charged with acting as neutral decision makers to help resolve the dispute.  In an arbitration action, employees may face a single arbitrator or a panel of arbitrators who vote to make group decisions.

How could arbitration affect my case?

Unfortunately, historical data shows that arbitration is disadvantageous to an employee seeking justice for unlawful employment practices.  At arbitration, employees do not have the benefit of a jury, who are generally everyday workers themselves, who may be more sympathetic to an employee’s claim than a veteran arbitrator.  Arbitration also imposes additional difficulties in securing documents, records, and testimony from employers.  Historically, employees who do not navigate arbitration carefully are likely to receive less in a settlement or an award through the arbitration process than they would if they were able to file a traditional lawsuit.  Arbitration also severely limits an employee’s right to appeal an unfavorable decision in their case.

Do I have an arbitration agreement?

This question can be trickier than one might think.  It is important that employees determine whether they are subject to an arbitration agreement before accepting a job and before filing a lawsuit.  Employers often place arbitration agreements among routine onboarding paperwork, training documents, click-through digital agreements, or within employment handbooks that often get glossed over by new workers.  Luckily, even in cases where an arbitration agreement may appear to exist, that agreement may not always be valid or enforceable.

Arbitration agreements are subject to judicial scrutiny and invalidation just like any other contract.  There are dozens of ways to render an arbitration agreement ineffective.  Arbitration agreements may be held to be too ambiguous, the result of fraud, or beyond the scope of an employee’s current dispute.  Despite the overall numbers, it is possible for an employee to get great results from arbitration, so long as the employee carefully navigates the rules and obstacles that arise in the arbitration process.

What can I do if I’m concerned about Arbitration?

At CBPH, we help employees navigate the tricky world of arbitration.  We regularly help South Carolina workers:

  1. Determine if they are subject to an arbitration agreement,
  2. Fight the enforcement of any potential arbitration agreement, and
  3. Get best-case results from arbitration proceedings.

If you’re concerned about an arbitration agreement, reach out to our firm to get a reliable opinion and representation for your case.  Arbitration represents inequality for South Carolina workers, and we stand eager to challenge that wrong and champion your rights.

-Chance Sturup

Noncompete Rulemaking Update – Employees still waiting.

Employees have at least 6 months more waiting time left for a major regulatory employment law change.

On January 5, 2023 the FTC proposed a rule that would make existing and future non-compete agreements illegal.

Since then, the FTC voted to extend the public comment period by 30 days with one member of the Commission stating she would have voted for a 60 day extension “[g]iven that the proposed rule is a departure from hundreds of years of precedent” that “would prohibit conduct that 47 states allow.”

The extended public comment period ended on April 19, 2023. The FTC received nearly 27,000 public comments. In particular hospitals and doctors were known to be at odds.

Now that the comment period is over, there is a 180 day-notice period before the rule can go into effect. That means the earliest the rule can go into effect is mid-October.

It is expected that lawsuits will follow over the rulemaking process and the FTC’s authority to make this rule.

If the rule withstands the legal assault this will be a monumental paradigm shift in favor of workers. Employees, if the noncompete ban is enforceable, will no longer be bound by restrictive covenants and will gain more bargaining power and leverage to insist on better terms and conditions of employment.

What to consider when offered a severance package?

Losing a job can be a difficult experience with the sudden loss of income and uncertainty of finding a new position elsewhere. Being provided a severance agreement can add another layer of stress to an already stressful situation. Businesses have a variety of reasons for offering severances agreements—some legitimate and some illegitimate or even illegal. It is important to consider why you are being offered the agreement and what conditions are tied to accepting the severance agreement.

Here are some tips to consider when offered with a severance agreement:

What is a severance package?

Although there is not a standard definition as to what makes up a severance package, a “severance package” typically includes a severance agreement and severance pay. Often the terms severance package, severance agreement or simply severance are used interchangeably. A typical severance agreement outlines the terms of the agreement where the employer provides certain financial benefits in exchange for the employee agreeing not to sue the employer along with agreeing to other terms. The financial benefits or “severance pay” usually include a combination of pay and/or benefits (payment of money, medical coverage, etc.).

Why do employers offer severance package?

Generally, employers are not required to offer a severance package to employees they are laying off or terminating from employment. Employers may be obligated to provide a severance under limited circumstances such as, for example, a union may have a requirement for a severance agreement in their bargaining agreements with employers or a high-level executive or salaried employee may have an employment contract requiring a severance. Even if an employer is not required to provide a severance agreement, they may do so for a variety of reasons. Some employers may have an internal policy to offer severance packages to employees with many years of service. Others may be using the severance package to entice an employee to sign an agreement that restricts their rights. For example, the agreement may waive an employee’s rights to pursue legal claims against the employer or the severance agreement may include a non-compete provision.

What is in a typical severance agreement?

The severance agreement is a legal contract between the employer and the departing employee. In exchange for the severance pay, the employee is agreeing to the terms of the agreement. Although severance agreements may not all be the same, they generally include the following terms.

  • General Release of Claims

A severance agreement will require an employee to promise not to sue their former employer. This is contained in a general release of claims section of the agreement. This is usually the longest section and sets forth that the employee is giving up their rights to sue for all manner of things including unpaid wages (failure to pay minimum wage, overtime, bonuses, commissions, etc.), discrimination (race, disability, religion, gender, national origin, sexual orientation, etc.), harassment (sexual harassment, etc.), retaliation, wrongful termination, defamation, and any other legally releasable claim as part of the general release of all claims. Of course, there are some claims that cannot be released under the law including future claims or your right to report certain illegal activity.

  • Non-disparagement Provision

A non-disparagement agreement prohibits the employee from talking negatively about the company, their product or service, and/or certain management or other employees. A non-disparagement provision can be overly broad and ambiguous as to what you can or cannot say. Typically, the employer will make such a provision one-sided so that it only applies to the employee.

  • Other Provisions

Of course, the severance agreement may contain other terms that need to be reviewed carefully and understood before the employee signs the agreement. Some of these terms are addressed in the next section.

What should you be wary of in a severance package?

Not every severance agreement looks the same and the employee needs to make sure they thoroughly review the severance agreement and understand the terms before agreeing to anything. In addition to potentially waiving your rights to sue, the agreement may contain (or not contain) other terms that you need to be wary of and consider before signing, such as the following.

  • One-sided non-disparagement, confidentiality or release provisions

Oftentimes the non-disparagement provision is one-sided and only benefits the employer. This can sometimes be negotiated to make the provision apply to the employer or at least make sure it is narrowly drafted and clear. Similarly, there may be some circumstances where an employee would like to make other provisions, such as confidentiality or the release of claims, mutually applicable to the employer in addition to the employee.

  • Clawback provisions for sign-on bonuses, relocation expenses, tuition reimbursement or other similar benefits

Employers sometimes provide certain “sign-on” benefits as part of the offer of employment to an employee. These benefits may include a sign-on bonus, relocation expenses, or tuition reimbursement. Often these benefits may include a clawback provision that requires the employee to pay back some or all of the amount if the employee is terminated or resigns within a certain time period. If the severance agreement is silent on such a provision or it is not explicitly addressed, then the employee may legally be obliged to pay back the benefit.

  • No rehire or no reapply provisions

The severance agreement may include a no rehire or no reapply provision that require the employee agree to not reapply to the employer or be hire by the employer in the future. This term is fairly standard in severance agreements where there may have been some dispute between the employee and employer.

  • Non-compete or non-solicitation provisions

The employer may use the severance package as a way to entice the employee into agreeing to a non-compete or non-solicitation agreement as part of the severance agreement. This can severely prohibit an employee’s ability to find work with another employer for a period of time (usually 2 years or less) and within a certain geographic region. An employee should strongly consider the negative implications such an agreement may have on them or their ability to find work before signing the severance agreement.

When should you consider consulting with an attorney?

While you may not need a lawyer to negotiate a severance agreement, we strongly recommend an employee consult an attorney before signing a settlement agreement. The employee may not want to seek an attorney for a variety of reasons such as they do not want to pay to consult with an attorney, they are ok with the amount of pay and benefits being offered, they do not have any concerns or questions about the agreement, they are not concerned about giving up their rights to sue, they are not concerned about any non-disparagement, non-compete or other provisions, they do not have any questions about the agreement, or they simply want to move past the termination.

However, an employee should consider consulting with an attorney regarding the severance package if they have any questions, concerns, or want to otherwise negotiate the terms or amount of benefits with the employer. Here are some situations where an employee may want to consider consulting with an attorney.

  • You are unhappy with the amount of benefits.
  • You have questions or concerns about the provisions of the agreement such as the non-compete or non-disparagement.
  • You had a dispute with your employer or you are concerned about releasing legitimate claims.

Employers may be unwilling to negotiate the terms of a severance package without good reason. An attorney can help you understand the agreement and whether there is good cause to demand an increase in benefits. For example, a lawyer may be able to identify if you have a potential claim against the employer and use this to negotiate a much better severance than the employee was offered or would be able to negotiate themselves. Employers may not take the employee seriously, even with a threat of a possible lawsuit, unless the employee is represented by an attorney.

Our firm practices almost exclusively in employment law and we have attorneys willing to consult with you and review your severance package.

  • Jay Babb

Law Enforcement Certification in South Carolina

Law enforcement officers, like many professional careers, are subject to organizational oversight. In South Carolina, law enforcement officers are regulated by the South Carolina Criminal Justice Academy and/or Law Enforcement Training Council.

Without a doubt, law enforcement officers have received increased public scrutiny in recent years. What the public – and even law enforcement officers themselves – do not often realize is that State law governs the determination of an officer’s fitness for duty as well as to adjudicate allegations that they engaged in misconduct.

Title 23, Chapter 23 of the South Carolina Code of Laws governs law enforcement officer eligibility and the adjudication of misconduct allegations. S.C. Code § 23-23-150(A)(3) defines “misconduct.” The statute further provides that if the head of a law enforcement agency or department within the State believes an officer has engaged in misconduct, as defined, it must be reported to the Academy. Upon receipt of the misconduct allegation, the Academy will preclude the individual from being employed as a law enforcement officer until the matter has been adjudicated. The officer has three (3) years from receipt of the allegation of misconduct to request a contested case hearing.

The contested case hearing is the sole avenue for a law enforcement officer in South Carolina to seek to have his/her certification reinstated. The hearing proceeds like a trial in that both parties are entitled to be represented by counsel, present opening statements, direct and cross examine witnesses, introduce evidence, and make a closing argument. Current regulations require that the reporting agency establish by a preponderance of the evidence that the officer engaged in the alleged misconduct. After receiving a recommendation from the hearing officer, the matter goes before the Council at a monthly meeting at which point a final agency decision is issued. In brief, the Council may permanently revoke certification, reinstate certification, or take some middle-ground action (i.e. probation, suspension, etc.).

CBPH is experienced in handling law enforcement certification matters, teacher certifications before the South Carolina Department of Education, and other licensure certification matters most often brought before a licensing board within South Carolina Labor Licensing and Regulation.

While I hope you are never in the situation, know that CBPH is here if your professional licensure or certification is ever in jeopardy.

Best, Ryan  

CBPH advocates for the Pregnant Workers Fairness Act

Pregnant workers gained additional protections in 2023. The Pregnant Workers Fairness Act (“PWFA”) is a new law that goes into effect on June 27, 2023. The PWFA requires employers to make reasonable accommodations for pregnant and post-partum workers who need them.

It is estimated that three-quarters of women entering the workforce today will be pregnant and employed at some point during their careers. The 44th anniversary of the Pregnancy Discrimination Act recently passed, yet we have a long way to go to protect pregnant and post-partum women in the United States. History has shown that the Pregnancy Discrimination Act was not enough to protect pregnant women. Former and current pregnant and post-partum workers in South Carolina, and around the United States, have been forced out of work because their employer refused to temporarily accommodate their pregnancy needs.

As a woman, I have always felt personally invested in the fight for pregnant workers’ rights. I have represented pregnant women continuously throughout my years of practice. It is a sad fact that mistreatment of pregnant and post-partum women is a reoccurring problem in South Carolina.

There was a coalition of people who brought this PWFA idea to fruition. I was a contributor helping to make this change for women. In collaboration with the National Women’s Law Center, one of my cases was described to Congress as an example of the real-life experiences of pregnant women in the United States. Four of my pregnant and post-partum clients signed onto a public letter to U.S. Senate Majority Leader Chuck Schumer urging him to pass the PWFA. You can read it here: Open Letter: 125+ Mothers Urge Leader Schumer to Pass the Pregnant Workers Fairness Act (New York Times Ad) – A Better Balance.

I am so proud of these women! I am honored to advocate for pregnant and post-partum workers when their rights have been violated.

-Shannon Polvi

Black History Month

Here at CBPH we fight to enforce the right to equal treatment for all employees in the workplace, particularly for black employees who have been marginalized in our workforce for far too long.

Congress passed the landmark Civil Rights Act of 1964, which included Title VII, the cornerstone of enforcement for racial equality in the workplace. Title VII guaranteed all workers equal treatment in the workplace regardless of race. Title VII covers every aspect of employment, including hiring, promotion opportunities, discipline, pay, leave, and termination. We regularly represent black employees across this state who rightfully demand to receive treatment from their employers that is equal to the treatment received by their peers of other races or ethnicities.

Alongside offices like CBPH, the Equal Employment Opportunity Commission (“EEOC”) plays a critical role in ensuring racial justice in the workplace. We bring cases before the EEOC to ensure that racial inequality in the workplace is identified, eliminated, and prevented in the future.

There is little doubt that our state and country has a long road ahead to achieve true racial equality in the workplace. The average black household income in South Carolina is 33% less than the statewide average. And the laws as applied in our justice system present heavy challenges for victims of discrimination.

But here at CBPH we work to challenge inequality and champion the rights of marginalized workers. We work everyday to live out the spirit of Martin Luther King, Jr.’s words “Make a career of humanity. Commit yourself to the noble struggle for equal rights. You will make a better person of yourself, a greater nation of your country, and a finer world to live in.”

Progress is inevitably slow and difficult, but our mission is to make it nonetheless.

– Chance Sturup

Locations in Columbia and Rock Hill
P.O. Box 11675
Columbia, SC 29211
(803) 799-9530
info@cromerbabb.com

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Cromer Babb & Porter, LLC provides the information on this website for informational purposes only. The information does not constitute as formal legal advice. The use of this site does not create an attorney-client relationship, and further communication with our attorneys through the website and email may not be considered as confidential or privileged. Any result achieved on behalf of one client in one matter does not necessarily indicate similar results can be obtained for other clients. Clients may be responsible for costs in addition to attorney’s fees. Please consult with our firm prior to relying on any information found on this site.