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I'm sorry to hear that. What has your employer done that has made you sick and worried all over?

Can you tell me what you did with the EEOC or workers comp before you got the file note? You talked about testifying last Friday, but if you applied for a promotion a few weeks back, and got a file note a few weeks back, what would this file note be the result of?

Had you taken actions like this before, that was known by the employer, without getting a file note? That is, did the employer make it clear that even though there was a policy against this, that they would not enforce it?

And to be clear, you were listed as a witness and subpoenaed before this file note?

And you told them at that time that you were uncomfortable?

I completely understand. True retaliation for filing, testifying, or assisting in a workers compensation or EEOC claim is prohibited under the law, and if you can establish evidence of retaliation, you could have a claim against them. Now that being said, it's retaliation that is against the law. Legitimate actions of the employer are not going to be determined to be retaliation. To show retaliation, you're going to have to show a real "cause/effect" relationship. That is, that the protected actions (filing a claim, assisting in an investigation, testifying, etc...) caused the retaliatory actions. So to show retaliation, you're going to first need to show a non-legitimate adverse employment action taken against you by the employer. The note in your file and subsequent passing over for a promotion would be the best "adverse employment action", and maybe the way they were treating you yesterday. Now if it was legitimate information gathering (yesterday), rather than actions taken to harass or punish you, then the EEOC would not determine that to be harassing. But if it was part of a "hostile environment" that is created in the wake of your protected actions, the EEOC could very well determine that their actions are retaliatory.

Now to make a case for retaliation, you would need to show that you were protected (because of complying with, testifying, etc... in an EEOC claim) and that an adverse employment decision / retaliatory actions were taken against you after you did that. The burden then shifts to them to show a legitimate, non-retaliatory reason for their actions. They can say that the file note was based upon a legitimate, preexisting policy that was violated. The burden then would shift to you to show that their "legitimate reason" was pretextual, and that the real reason that they took this action was because of retaliation against you for your protected activities.

So it's possible that their actions were retaliatory, but to have a case for retaliation under the EEOC, you would still have to prove it.

And as such, you need to gather as much evidence as you can before you approach the EEOC and report their behavior.

Make a timeline of the events to the best of your knowledge and access to the information that you have.

Document everything. If you have a meeting or interaction with HR, a boss, superior, etc... regarding this situation, immediately after write down the who, what, when, where, why and how of the meeting. Get names, dates, witnesses, etc... to the meeting.

Again, the key is to show a causal connection between your actions in complying with this claim and their actions taken against you.

Both of them are protected activities.

That is, retaliation is prohibited in both the workers compensation statute and the EEOC investigation statute.

Understood. And that is why you're going to want to gather as much evidence as possible, showing what has happened (in a timeline) up until this point, and document the interactions going forward.

Yes, the fact that it was a violation of the policy would make retaliation more difficult to prove, but not impossible. If this is a written policy that's never enforced, and they enforce it against you only, you can show pretext (that the true reason they did this was to retaliate). As for the record, keep it to yourself. You don't want to show your hand until the best itme.

As for answering, yes, you will need to continue to do so, if it is true information gathering. If they're berating you and clearly trying to intimidate you or change your answer, that's when it's hostile work environment.

You could, but be careful, as that might tip your hand.

Yes. If this is really information gathering, then that's something they can do. Even asking the same exact questions would be fine, because if you change your story, they can go back to workers comp and show that your recollection is inconsistent, etc...

So calmly answer the questions.

You can certainly type up this list, and if they continue to ask you, give them this list. That's really up to you.

And that's where you can correct them. A certain amount of clarification is allowed.

Only when it's absolutely clear that they're not really seeking clarification or confirmation, but are trying to intimidate you to change your response would that be retaliation.

And that is why you're going to want to document everything.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, and good luck to you!

Absolutely. Make sure that they consent to the recording, but you can do this if they consent.

My pleasure. If you feel that I've gone above and beyond the call of service in answering your follow up questions, bonuses are greatly appreciated. Thank you, and good luck to you!