Under California’s Labor Code section 230(e) employees are protected from termination or other workplace retaliation when they take certain protected actions, such as reporting discrimination, provided that either the employee has notified the employer of the violation or the employer is otherwise aware of the violation.
Facing Employer Retaliation? Protect Your Vital Legal Rights
California employment law prohibits employers may not retaliate against their workers for taking certain protected actions. The anti-retaliation laws protect workers from suffering adverse treatment at work for doing what they are legally required or allowed to do.
California employer retaliation laws fulfill a very important role in the protection of workers’ rights. Although workers who are fired from their job are protected under wrongful termination laws, others who do not lose their job, but are deprived of important workplace benefits as a result of retaliation.
Retaliation can occur in a wide range of circumstances, making it one of the most common complaints that workers file against employers. However, not all instances of wrongful or unfair treatment at work will qualify as retaliation.
If you are dealing with hostile employer retaliation in California, the employment attorneys at Eldessouky Law can help you. We provide free case evaluations and can answer any questions you may have. You can call our office today at 714-409-8991 or fill out a form online.
What is Employer Retaliation?
Employer retaliation is when an employer, either directly or through a manager or supervisor, takes any type of adverse action or terminates an employee for engaging in certain legally protected activities.
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An employer cannot retaliate against an employee for exercising their rights.
An adverse action would be any action by the employer or a representative of the employer that would discourage a rational employee from speaking up about possible wrongdoing or participating in any other form of protected activity.
It could be a minor reprimand or something more serious such as termination, demotion, suspension, pay cut, or other adverse action. Examples of protected activities include filing a complaint about discrimination or harassment, taking medical leave, refusing to violate the law, speaking out about workplace safety or wages, and reporting illegal activity.
What is considered workplace retaliation in California?
Ordinarily, employment in California is “at will”. This means that your employer can fire you at any time or for any reason, or for no reason at all. In addition, they have ultimate say over how you work, what work you do, what benefits to offer, and other matters relating to your employment.
However, there are certain aspects of your employment that are regulated by law. An employer cannot fire workers for reasons that breach the employment contract or that are contrary to the provisions of California labor laws. Employers are also not allowed to engage in retaliation against employees.
Workplace retaliation in California occurs when your employer causes you to suffer a negative employment action because you engaged in a protected activity. The negative employment action could be a termination of your employment, in which case you may be able to sue for wrongful termination.
Your employer could also make your working conditions so intolerable you have no choice but to resign. In such a case, you may also be able to sue for constructive termination or a hostile work environment, where you do not resign.
There are also several other subtle ways in which workplace retaliation can occur. Some of these include:
- Undeserved negative performance reviews
- Transfer to less desirable tasks or shifts
- Denial of job benefits you have earned
- Denial of a promotion or raise you believe you deserved
- Denial of access to training or opportunities that would help advance your career
- Unfairly increased workload
Any of these acts may be one-off or they may constitute a pattern of wrongful negative treatment that unfairly prejudices you for taking a protected action. California Jury Instructions CACI 2505.
For all of these less subtle signs of employer retaliation, you may be able to file a complaint to stop the wrongful action and recover compensation. Not all of these actions will amount to retaliation though.
We have discussed some of the actions that might constitute negative or unfair employment treatment. But for them to amount to retaliation, you must also have experienced those actions because you engaged in a protected activity.
Dealing with an Employment Dispute?
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Protected Activities Under California Retaliation Laws
There are specific activities that are regarded as protected under California law. It is only in respect of these activities that you may file a complaint of workplace retaliation. Thankfully, the list of protected activities outlined by the California Department of Industrial Relations includes the most significant protections that workers require. Here are the anti-retaliation laws and the activities they protect.
Common law: This is essentially court-developed law that specifies an employer cannot retaliate against an employee for reasons that violate public policy. Public policies are regarded as fundamental and substantial principles of right legal conduct that are supported by constitutional or statutory law. Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890 [66 Cal.Rptr.2d 888, 941 P.2d 1157]. There are four main categories of activities that are protected under common law:
- Exercising a constitutional or statutory right or privileges, such as exercising your family and medical leave rights.
- Reporting a violation of a statute for public benefits, such as disclosing anti-trust violations
- Refusing to violate a statute, including refusing to commit a crime on the instructions of your employer
- Performing a statutory obligation, such as going for jury duty
Whistleblower laws: California Labor Code 1102.5 LC protects employees from retaliation for specific protected activities. The law applies to both ultimate employment actions, such as termination, and less subtle actions. The protected activities here include:
- Reporting suspected criminal activity by their employer
- Reporting a suspected violation of law or regulation to a supervisor who has the authority to investigate; or
- Providing information to or testifying before a government body conducting an inquiry into a potential violation by the employer
Fair Employment and Housing Act: Under FEHA, employees are protected from retaliation for standing up to employers who harass or discriminate against the employee or their co-workers. This includes protection for:
- Filing a complaint against discrimination or harassment
- Opposing acts of harassment or discrimination at work
- Requesting workplace accommodations for a disability or religious beliefs
- Testifying or assisting in any proceeding under FEHA
Occupational safety and health: An employer may not discharge or retaliate against an employee for:
- Making a complaint to the California Division of Occupational Safety and Health or any other government agency responsible for workplace safety or health
- Institute or testify in occupational safety and health proceeding
- Exercise any right under occupational safety and health laws or participate in a committee under these laws
- Refuse to perform work in or under conditions that include violations that would create a real and apparent hazard to workers (Cal. Lab. Code §§ 6310, 6311)
False Claims Act: It is illegal for an employer to fire a worker for filing a lawsuit to stop an employer from committing fraud, theft, or embezzlement of government funds. These lawsuits are called ‘qui tam’ lawsuits. The protection also extends to workers who report violations of the False Claims Act (Government Code 12652)
Workers’ Compensation: No worker can be retaliated against for exercising their workers’ compensation rights. This includes:
- Filing a workers’ compensation claim; or
- Testifying in a co-worker’s compensation hearing (Cal. Lab. Code § 132a)
Depending on the circumstances of your case, you may be entitled to protection under one or more of these laws. Our knowledgeable California employment law attorneys can help you understand how the law applies to your unique circumstances.
How to Prove Retaliation in the Workplace
Although the workplace retaliation laws are clear on what amounts to retaliation, it can often be difficult to show that retaliation has in fact occurred. This is because retaliatory acts can be subtle in many cases, making them harder to detect.
To establish a claim for retaliation, workers are usually required to show that:
- They participated in a protected activity
- They suffered an adverse employment action from the employer
- Participation in the protected activity was a substantial motivating reason for the occurrence of the adverse employment action
- They suffered harm; and
- The adverse employment action was a substantial factor in causing the harm.
Once an employee makes a case for retaliation, the employer must respond by showing that there was a legitimate, non-retaliatory reason for the negative employment action.
What if it turns out that your employer did not do anything wrong? It is important to keep in mind that the purpose of the law is to prevent employers from blocking the exercise of employee rights. As a result, it does not matter if the employer was not actually doing anything wrong before a complaint was made. If you genuinely believed you were engaging in a protected activity and you suffered retaliation as a result, you still have a right to compensation. Miller v. Department of Corr. (2005) 36 Cal.4th 446, 473–474 [30 Cal.Rptr.3d 797, 115 P.3d 77].
However, it must have been clear that you intended to and actually were engaged in a specific protected activity. It must not have been vague, general, or related to personal grievances.
How to File a Retaliation Claim in California
As each case of workplace retaliation is unique, depending on the law under which you are claiming relief against retaliation, the procedures for filing a claim may vary as there are several ways to file a retaliation claim in California.
You may be required to follow separate procedures or approach different agencies.
Your employment lawyer will be able to advise you on your rights, walk you through the process of filing your claim with the corresponding state or federal agency, and help you file a lawsuit in court if necessary.
To file a retaliation claim in California, an employee will need to follow a series of steps.
Step 1. Establish if you have a case.
To prove a case of workplace retaliation, an employee must show that they engaged in a protected activity and suffered an adverse employment action from their employer as a result.
There are many different types of protected activities that can be considered in a retaliation claim, but the most common include:
- filing a complaint with a government agency,
- refusing to engage in illegal activity,
- and opposing discrimination or harassment.
You will need to speak to an employment attorney to determine whether or not your situation qualifies as a protected activity.
Some of the most common adverse employer actions in retaliation cases include:
- wrongful termination,
- reduction in wages or benefits,
- and being subjected to a hostile work environment.
While these are the more obvious forms of retaliatory action by an employer, there are other forms that can be more subtle. A good rule of thumb is that anything that could reasonably be seen as an employer’s way of punishing an employee for engaging in a protected activity can qualify as retaliation.
Step 2. Contact an employment attorney
Once you have established that you have a case, the next step is to contact an experienced employment attorney who is licensed to practice in California.
It is absolutely essential to obtain legal counsel when filing a complaint due to the numerous laws and regulations that may apply. Filing with an incorrect agency or making mistakes while submitting your legitimate complaint can forfeit any chance of recovering damages, so make sure you get help from a lawyer!
Call our office today at (714) 409-8991 or fill out our online form to schedule a free consultation with one of our retaliation attorneys.
Step 3. Determine which procedure or agency to approach
You may be required to follow separate procedures or approach different agencies. Here are some of the procedures:
- Common law: For a claim of retaliation in violation of public policy, you are entitled to file a tort lawsuit against your employer. This means you can go straight to court and sue your employer with the aid of a workplace retaliation attorney.
- Whistleblower retaliation: Victims of whistleblower retaliation under Labor Code 1102.5 LC are required to first notify the California Labor and Workplace Development Agency. After notifying the agency, and also your employer via certified mail, the agency may investigate your complaint. If it chooses not to, you can go ahead to file a lawsuit, within 2 years.
- FEHA: For retaliation under FEHA, the law requires aggrieved employees to file an initial complaint with the California Department of Fair Employment and Housing (DFEH). Your complaint will be investigated and DFEH will issue a ‘right to sue’ notice to let you file a lawsuit, within the next 1 year.
- False Claims Act: If you were retaliated against under the False Claims Act, you can go right ahead to file a lawsuit.
- Occupational safety and health: You are required to file a complaint with the California Division of Labor Standards Enforcement. This must be done within 6 months of the retaliatory action.
- Workers’ compensation: These complaints are required to be filed with the California Division of Workers’ Compensation, also within 1 year.
Step 4. Prove that the employer’s action is retaliatory
The most important part of filing a successful claim is proving that the employer’s actions are retaliatory. This means showing that there was good faith, reasonable belief on your part that you were engaging in a protected activity, and that the employer acted out of retaliation against this.
Your workplace retaliation attorney can help you gather evidence to prove that the employer’s action was retaliatory. This may include evidence showing that you were fired, demoted or subjected to a hostile work environment shortly after filing a complaint about workplace violations or issues.
Your attorney will also help you obtain all relevant documents including emails, memos and personnel files that can provide further proof of your allegations.
Step 5. Seek damages
The final step is to seek damages against the employer. Depending on the type of retaliation you suffered, you may be entitled to receive compensation for:
- Lost Pay
- Lost Benefits
- Pain and Suffering
- Punitive Damages
- Attorneys’ Fees
If you have been the victim of retaliation in the workplace, don’t hesitate to contact our office for assistance. Our experienced workplace retaliation attorneys are here to help you seek justice and recover from your losses. Get in touch with us today at (714) 409-8991 or fill out our online form to schedule a free consultation.
Eldessouky Law – Workplace Retaliation Lawyers for California Employees
At Eldessouky Law, we are committed to protecting the rights of California employees and fighting for justice on their behalf. Retaliation in the workplace is unfortunately very common, but with our team of experienced retaliation attorneys, you can be sure that your case will be handled professionally and with great care.
Our attorneys have a thorough understanding of California’s labor and employment laws, so you can rest assured that your case will be handled with the utmost skill and care. We investigate every case thoroughly to ensure we have all the facts and are prepared to take your case to court if necessary.
If you believe you have been unfairly retaliated against by an employer for reporting workplace violations or raising issues, our experienced retaliation lawyers can help you seek justice and recover from your losses. Contact us today at (714) 409-8991 or fill out our online form to schedule a free consultation.
Contact a Retaliation Attorney Today
For questions about California workplace retaliation law or to discuss your case confidentially with one of our skilled California employment law attorneys, contact us at Eldessouky Law.
Call us at 714-409-8991 to schedule a free consultation today.