Is your employer retaliating against you? Today, we’re taking a closer look at how to identify the more subtle signs of employee retaliation.
Under California labor laws, certain actions are protected from retaliation by employers. These include whistleblowing, discussing wages,being in a protected class, and union activity. These are activities that employers have traditionally sought to suppress or punish employees for engaging in through retaliatory measures, which is why they are now accompanied with legal protections. Employers are aware that they are not permitted to retaliate and what is traditionally seen as a retaliatory action, but they still want to control their employees through retaliatory measures.
This leads employers to take a more subtle path. Subtle forms of retaliation are designed to make employees understand that they are being punished or even drive them from the company without exposing the employer to the legal repercussions of violating the retaliation ban.
How do you know if your employer is subtly retaliating against you? At Eldessouky Law, we have seen many similar cases and can help you prove retaliation, no matter how subtle.
California’s Workplace Retaliation Laws
California upholds several pivotal statutes designed to shield employees from retaliation in the workplace. Among the most prevalent laws are:
- California Labor Code Section 1102.5: This law safeguards employees who disclose violations of state or federal laws, regulations, or public policies.
- California Fair Employment and Housing Act (FEHA): FEHA shields employees from retaliation for opposing unlawful discrimination, harassment, or retaliation in the workplace.
- California Whistleblower Protection Act: This act safeguards public employees who report improper governmental activities from retaliation.
- California Health and Safety Code Section 1278.5: This law protects employees in healthcare facilities who report patient care violations from retaliation.
The Protected Action
The first step to any retaliation case is when an employee takes a protected action that is undesirable to the employer. Protected actions include
- Whistleblowing: Reporting your employer for breaking laws or, failing compliance, or violating regulations.
- Discussing Wages: Talking about your wages, asking others about their wages, or requesting the current pay range for each role.
- Union Activity: Participating in a union or discussing the formation of a union
While there can be other triggers for retaliatory behaviors, like correcting your boss in a meeting, these activities are protected from retaliation by law.
Suspicious Retaliation
Retaliation can occur even if you didn’t take a protected action. Perhaps you are blamed for an anonymous report you didn’t make, or you witnessed wrongdoing but haven’t reported it yet. Retaliatory actions – overt or subtle – are still illegal retaliation if your employer is acting on suspicion of a protected action.
Beyond the Protected Action: The Intersection of Protected Classes and Retaliation
In California, the protection of employees extends beyond specific statutory provisions to encompass safeguarding individuals belonging to protected classes. Engaging in activities related to these classes, such as reporting discrimination or harassment based on race, gender, religion, or other protected characteristics, is shielded from retaliation. Any adverse employment actions, like demotions or forced leaves, in response to such activities are prohibited by law. This ensures that employees can exercise their rights and contribute to a discrimination-free workplace environment without fear of reprisal or adverse consequences.
Recognizing Retaliation: Beyond Termination
While termination is often the most conspicuous form of retaliation, it can manifest in subtler ways. Employees may face retaliation through tactics like being placed on a Performance Improvement Plan (PIP), which can lead to eventual termination if performance goals aren’t met. Alternatively, employers may offer a severance agreement under the guise of a mutual parting, masking retaliatory motives. Other significant changes in employment, such as sudden demotions or transfers to less desirable positions, can also signal retaliation. Identifying these alternative forms of retaliation is crucial for protecting employee rights and ensuring fair treatment in the workplace.
Subtle Signs of Employer Retaliation
If you have engaged in a protected activity, your employer knows that they can’t fire you, demote you, or dock your pay. These “adverse actions” would be too obvious, creating a broad paper trail and are considered obvious signs of retaliation in court. More subtle methods of retaliation, however, are something that becomes evident as retaliation when you look at the big picture.
Here are a few of the more underhanded ways that employers try subtle retaliation against employees they want to discourage or punish.
1. A Change in Tone
Often, the first sign of workplace retaliation is a change in tone. You know as soon as you walk in the door that something is wrong. Your once-friendly boss is cold or even prickly. Your coworkers may seem nervous to be too close to you and hurry away, if they are aware of what has happened. Or perhaps the sense of change occurs more slowly, but the way certain people – usually management – treat you has subtly shifted toward a negative vibe since your protected action was discovered or even just suspected.
2. Negative Performance Reviews
Have your performance reviews suddenly gone south for no reason? Performance reviews are among the most common ‘subtle’ form of retaliation. This can manifest in a few different ways.
- Suddenly graded on a harsher scale than before, and in comparison to your coworkers
- Negative marks for things you didn’t do
- Negative marks for things that aren’t rules or standards that existed before
- Sudden exacting standards and new rules applied only to you
Performance review abuse is not just a form of punishment. It can also be the setup, used to justify firing you later for ‘performance issues’ instead of the official reason of retaliation.
3. Schedule Abuse
In jobs with a shift schedule, you may be subjected to schedule abuse. This occurs when your employer changes your schedule in a way intended to harm you. Schedule abuse can include:
- Reducing your hours to the bare minimum to reduce your pay or presence at work
- Scheduling shifts back-to-back to exhaust you
- Preventing you from ever taking a full day off
- Scheduling excessive overtime
- Denying you overtime opportunities
- Changing your schedule at the last minute (this is also illegal)
- Denying approved time off
- Placing you relentlessly on call
- Making you open or close regardless of turn-taking routines
- Scheduling you over other obligations
4. Insulting and Undermining Comments
You may suddenly find yourself targeted by negative comments. Your boss may indicate that you are untrustworthy, incapable, or unqualified to be on the team. The comments might be stated openly in the shared space where you can hear them, whispered behind your back, or you might even be openly insulted to your face.
Hostility, insults, and undermining comments are common forms of retaliation that employers think they can get away with because it’s just a spoken conversation with no “hard records” of the behavior. They often use this method to punish or even drive out an employee who has blown the whistle.
5. Rumor Spreading
Some employers go so far as to spread unfounded rumors to erode your credibility. If a manager is afraid you’ll tell them about their misbehavior, they might try to “get you first” by telling others that you are a compulsive liar, faked your credentials, defrauded a client, have engaged in unseemly behavior, and worse. The rumor depends on the way the rumor-starter thinks, but they might say anything they believe will make others discredit what you have to say about them.
Worse, their goal might be to prevent you from being hired in the future, and they might lie to clients and other industry leaders that you have broken the rules of your profession.
6. Unfavorable Assignments
Another common retaliatory measure is to give the targeted employee unpleasant and undesirable assignments. They may keep you from your favorite clients, remove you from your best projects, or give you tasks that they know you dislike.
If there is a hierarchy of assignments on your team, you may suddenly find yourself at the bottom of the ladder. In some cases, a boss will do this without speaking a single word about the situation other than to suddenly change your assignment profile from good to bad.
7. Denial of Promotion or Bonuses
Your employer probably knows better than to demote you or deny you typical compensation. But they might pass you over for a promotion you were lined up for, or even deny you assignments that would typically earn you a bonus in a normal year.
8. Moving Your Work Location
Employers sometimes resort to subtle forms of retaliation, such as changing your work location. While this action may seem innocuous, it could be a way for them to target you without overtly breaking the law. For instance, they might relocate your desk to a less desirable area or move you to a location that significantly increases your commute time. These changes could also impact your health or exacerbate existing medical conditions, potentially crossing into disability discrimination territory.
9. Constructive Discharge
The final stage of a subtle retaliation may be to try to make you so uncomfortable that you quit instead of being fired. This is known as constructive discharge, and adds another layer of illegal action to your employer’s already considerable misdeeds.
Establishing Causal Connection: Key to Retaliation Claims
In retaliation claims, proving a causal connection between the employee’s protected activity and the adverse employment action is crucial. Adverse employment actions encompass various actions taken by the employer that negatively affect the terms and conditions of employment, such as termination, demotion, pay reduction, or undesirable changes in job responsibilities.
What Evidence to Collect to Prove Subtle Retaliation
How can you prove subtle retaliation if your employer is trying to be sneaky? What can you do to collect evidence that you are being retaliated against when your employer knows the laws and how to avoid detection?
Document the Initial Action or Accusation
Start with the protected action. Document the action you took and the day it occurred. If you didn’t take an action, document any sign given by your employer that they suspected you of a protected action.
Keep Emails and Digital / Paper Records
Everything in the modern workplace creates a paper trail or, rather, a digital trail. Keep a backup of your work emails, texts, and chat logs. Make a copy of digital records and keep any paper records that might exist. This includes schedules, pay stubs, assignments, discussions – anything that has a ‘hard copy’ and might help build the big picture.
Snap Photos of ‘Temporary’ Documents
If your employer tries to show you documents and take them away, snap a photo with your phone whenever possible. For example, if you’re not allowed to keep a copy of each performance review, take a picture.
Track Your Hours and Pay
Keep track of any change in your hours or pay. It’s best if you can compare your hours and pay before the retaliation turnpoint and after.
Record Public Conversations
California is a two-party state when it comes to audio recordings. This means you can’t record private conversations (alone in a closed office) but you can record conversations in public places. An open office floor, lobby, commissary, break room, or outdoors are all public. You can record these conversations and anything people say about you in these public places.
Record Changes in Your Assignments and Bonuses
Were you reassigned after the retaliation point? Record changes in your assignments and records of the bonuses you earn before and after. Create evidence that the method for assigning you to tasks or projects changed.
Keep a Diary of Mistreatment
Even when you can’t get any other evidence, keeping a daily journal can provide some degree of proof. Regular entries about cruel things said to you or ways you were mistreated can paint a picture for the court that can be corroborated by other circumstantial evidence.
Ask Coworkers for Witness Statements
If you have sympathetic or even neutral coworkers, ask them to be your witnesses. All they need to do is give statements of fact, confirming that your boss was abusive in meetings or changed their behavior in an observable way. They can submit their statements in writing or volunteer to speak in court on your behalf, depending on how involved your coworkers want to be.
The New California Presumed Retaliation Law
As of January 1, 2024, California passed a new law in which adverse action by an employer within 90 days of a protected action is presumed retaliation. This reduces the burden of proof on affected employees. Now, retaliation is the presumed intent when an employee is punished after a protected behavior. While this law primarily applies to overt retaliation like firing or demotion, more subtle retaliation cases will be considered in the same light.
IN a Nutshell: Retalaition Against Employees in California
Retaliation is against the law in California workplaces, covering actions like termination or demotion due to protected activities like whistleblowing. Employees can face retaliation for reporting discrimination, harassment, or unsafe working conditions, among other protected activities. Proving the link between the protected activity and adverse employment actions is key. Getting legal help is essential to gather evidence effectively and protect your rights.
Protect Yourself from Subtle Retaliation with Eldessouky Law
Subtle retaliation can be devastating to your morale and can even damage your future career. You don’t have to tolerate a campaign of retaliation against you, even if your employer thinks they are being sly. The California employment lawyers of Eldessouky Law will help you stand up against your employer and hold them accountable for illegal retaliation, both overt and subtle. Whether you engaged in a protected action or your employer just thinks that you did, you do not deserve to be treated with hostility at every turn.Contact us today to consult on your case.
