The Price of Speaking Out

By Ana Jacques 

The Law Students on Workers’ Rights series publishes essays from current and incoming students from top law schools across the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What is the most significant challenge facing workers’ rights, and what role should employment attorneys play in addressing that challenge?”

Protecting workers’ right to speak up without fear of retaliation is labor law’s greatest challenge today. Over the last few years as a law clerk and paralegal in plaintiff-side labor and employment cases, I have seen employees lose hours, receive negative performance reviews, or be shifted to less favorable assignments after reporting discrimination, unsafe conditions, and unpaid wages. These punishments teach employees that speaking out carries too high a price. When raising a concern risks financial hardship or job loss, legal protections on paper offer little real safeguard. 

Retaliation claims now outnumber every other category filed with the Equal Employment Opportunity Commission. In California, where my firm is located, filings under Labor Code section 1102.5 have risen significantly in recent years. This fight against retaliation finds its roots in the early twentieth century, when the National Labor Relations Act protected employees’ right to organize and engage in collective activity without fear of reprisal. Later statutes extended safeguards to whistleblowers reporting safety or legal violations. Yet enforcement remains uneven. Movements such as Me Too demonstrate that workers still face overwhelming pressure to stay silent and that progress demands both strong laws and cultural change. 

Several factors allow retaliation to persist. The employer-employee power imbalance means that losing a paycheck or facing demotion can devastate a household. Many employees, especially immigrants or those lacking English fluency, cannot risk their livelihood. As a bilingual advocate fluent in English and Portuguese, I have guided clients who did not know that concerns about unpaid overtime or faulty equipment were protected by law. Retaliation often takes indirect forms such as sudden shift changes, negative comments in reviews, or exclusion from meetings. These instances make early evidence gathering vital. Most employees do not consult an attorney until the harm is severe. 

Employment attorneys must move beyond filing lawsuits to confront retaliation on multiple fronts. For one, I believe that success depends on preserving evidence from day one. I collaborate with senior counsel to reconstruct timelines, interview witnesses, and collect communications that link a protected action such as filing a formal complaint to Human Resources, to an adverse decision. Building trust with clients is equally crucial so they feel secure sharing every detail of their experience. 

Laws mean nothing to workers who do not know they exist or who fear that reporting violations will make matters worse. I volunteer with the Florence Immigrant and Refugee Rights Project and translate know-your-rights materials into Portuguese. When workers learn that they have legal recourse often gives workers the confidence to address problems before they become crises. 

Whistleblowers are too often branded troublemakers. By publicizing successful cases, writing opinion pieces, and collaborating on amicus briefs, lawyers can shift the narrative so that defending one’s rights is recognized as an act of civic responsibility. Highlighting client stories affirms that standing up for fair treatment benefits society as a whole. By combining litigation, outreach, and narrative work, employment attorneys change both individual lives and the broader workplace culture. 

Reflections from Charles Joseph

Retaliation is a major problem in many workplaces. It’s also the most common type of workplace discrimination. When workers exercise their rights, employers cannot retaliate against them – and yet it happens all too often.

As Jacques argues, employment lawyers can play a significant role in protecting workers when they experience retaliation. WNT created a guide to filing a retaliation case and an article on what makes a strong retaliation case to give workers the information and resources they need to stand up for themselves.

Ana Jacques holds a bachelor’s in legal studies with a specialization in conflict resolution and management from University of Massachusetts Amherst. She is a current law clerk and brings experience as a paralegal and legal translator. Jacques will attend Northeastern University School of Law in the fall. Contact Jacques on LinkedIn.

Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $200 million for clients.