Power Dynamics and the Fear of Retaliation

By Ian Russell

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

Employers have a great deal of power over their employees’ lives. 

This is hardly a new development, of course. The nature of an employment relationship is that the employer always has some degree of advantage. But the extent of that advantage varies over time, and the greater the power imbalance, the easier it becomes for employers to get away with violating employees’ rights. 

While the present job market may mask some of these imbalances, the overall picture of the American economy is not working in employees’ favor. Consider that about 60% of Americans live paycheck to paycheck. Approximately the same percentage can’t afford a $1,000 emergency expense. This is not an economy in which most workers can afford to be unemployed for any length of time, and so the threat of job loss is a severe and ever-present threat. 

Furthermore, roughly half of Americans have health insurance through an employer. For those workers, job loss is not only loss of income, but also loss of healthcare – which is particularly frightening for workers with chronic medical conditions and other health concerns, or those who have dependents with those concerns. 

Finally, just 10.1% of American workers were in a union in 2022 – the lowest unionization percentage on record. In the private sector, union workers make up just 6% of the workforce. Unions have historically played a key role in leveling the playing field between employer and employee, but unethical and often unlawful conduct by employers has dramatically weakened the power of collective bargaining. 

Taken together, these factors paint a pessimistic picture for workers, especially young workers who are not financially established. Employees are keenly aware that they need to stay employed at all costs, because even a relatively brief loss of income or health insurance can be financially disastrous. And without the protection of a union to help resolve disputes, they are left navigating uncertain waters largely on their own. 

It’s unsurprising that under these circumstances, employees who are subject to unlawful discrimination, harassment, or other illegal or unethical behavior in the workplace often choose to remain silent. Fear of retaliation is the leading reason employees do not report inappropriate workplace behavior, at 46%, followed by lack of confidence the issue will not be addressed, at 39%. 

That fear is not unfounded: according to the Equal Employment Opportunity Commission (EEOC), retaliation is far and away the most frequently cited claim in charges filed with the agency. According to a report by the National Women’s Law Center, 72% of people who complained about workplace sex harassment experienced some form of retaliation – half of whom were fired. Moreover, perception is reality. The fear of retribution may have a chilling effect on reports of legal violations even if it is unfounded in an individual case.

No matter how strongly the statutes and regulations protecting workers are written, if violations go unreported, the law becomes a dead letter. Unlawful discrimination, sexual harassment, and wage theft need to be reported before they can be addressed. When the fear of retaliation hangs over employees’ heads, there is only so much the law can do to level the playing field. 

These challenges are not insurmountable, but they will require a concerted effort on the part of employment attorneys and workers’ rights advocates. 

First, workers need to be educated about their rights to a far greater degree. An astounding number of employers have policies prohibiting employees from discussing salary with their colleagues, even though such policies are legally unenforceable under the National Labor Relations Act. Most workers don’t know the legal definition of a “hostile work environment” or the warning signs of unlawful discrimination. While it is, of course, unrealistic to expect every employee to become an employment lawyer, better general knowledge of employees’ legal rights and remedies is absolutely achievable. 

Second, at both the federal and state level, worker protection agencies need adequate funding to enforce the employment laws already on the books. Moreover, enforcement provisions must be strengthened and loopholes closed. For the 39% of employees who decline to report misconduct because they fear that nothing will be done to address the problem, we must provide a better solution. 

Finally, employees need universal access to legal services in order to effectively advocate for themselves in the workplace. We need highly skilled plaintiff’s employment attorneys who are prepared to meet workers’ needs in an accessible and affordable manner. Sustained, dedicated advocacy will be critical to turn the rising tide of power imbalances in the workplace and protect workers from fear of retaliation. 

Reflections from Charles Joseph

In his essay, Ian Russell diagnoses a major problem – the power imbalance between employers and employees leaves too many workers afraid to protect their rights. In fact, that’s one reason I created Working Now and Then: to offer legal resources and information so workers know their rights. FAQs like What is a Hostile Work Environment and What is Wrongful Termination are consistently among our most popular resources.

Information is power – and workers who know their rights can make informed decisions about their next steps. Protecting employees (and independent contractors) from retaliation is an important goal for workers and attorneys. 

Ian Russell holds a bachelor’s in history and mathematics from the University of Massachusetts Amherst. He brings a decade of private and nonprofit sector work experience to the University of Connecticut School of Law, where he will join the class of 2026 in the fall. Russell is also the runner-up for the 2023 Charles E. Joseph Employment Law Scholarship. Contact Russell 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 $140 million for clients.