California is a state characterized by high employee protections. You might have heard about “at-will employment,” which implies that you or your employer can terminate the employment relationship at any time and on almost any grounds. The concept is often misinterpreted, as it is subject to significant restrictions.

At-will employment does not give your employer the right to punish you for engaging in lawful, protected activities. You might be the victim of unlawful workplace retaliation if you face negative consequences at work shortly after reporting illegal activity or defending your rights. Retaliation is a wrong committed by your employer, who initiates any adverse action against you because you have been involved in a legally safeguarded activity.

If you are a victim of retaliation at work, Empower Sexual Harassment Attorneys is here to fight for your rights and hold your employer accountable. Our team can help you learn more about your options, take decisive action, and fight against unfair treatment while working.

What Is the Legal Definition of Retaliation in the Workplace?

To determine whether you have a good legal case, you should first be aware of what constitutes retaliation in legal terms. Feeling that you are not treated fairly is insufficient. The action you took in response to the unfair treatment must qualify as a legally protected activity.

In California, the common elements of proving a successful retaliation case include the following:

You Were Engaged In a Protected Activity

First, you must prove that you were engaged in a “ activity.” This is a broad category of actions for which the law shields employees from being punished. It involves a wide spectrum of behavior, including making a formal complaint of sexual harassment or just talking to a supervisor about unsafe working conditions. The law provides these safeguards because it is public policy to encourage employees to report misconduct without fear of reprisal.

Your Employer Discriminated Against You

You must demonstrate that your employer discriminated against you in an adverse employment action. It can be blatant, like being fired or demoted, but it is also a vast number of less overt actions. Any action that has a reasonably likely impact of deterring you or other employees from exercising your legal rights may be considered an adverse action.

You Must Establish A Causal Link Between Your Protected Activity And The Adverse Action

You must establish a causal connection between your protected activity and the adverse employment action. This is usually the most challenging aspect of a claim. The evidence that you must present is that the decision made by your employer to punish you was substantially based on your conduct, which is covered by the protection. The most important key to a successful retaliation claim is proving this connection.

Common “Protected Activities” Under California Law

You might be questioning whether the act that you have done is legally safeguarded. The legislation is intended to be all-inclusive, protecting you as an accountable employee and law-abiding citizen. The range of safeguarded activities is extensive, and it encompasses your endeavors to provide yourself and your co-workers with a fair, safe, and legal working environment.

Opposing Discrimination and Harassment

One of the most significant types of protected activity is opposing discrimination and harassment. If you formally complain to Human Resources or a government agency such as the California Civil Rights Department (CRD) regarding discriminatory behavior, such a move is well safeguarded. This safeguard is not limited to official complaints.

You also have coverage against practices you reasonably believe are unlawful, including raising your voice in a meeting over a discriminatory policy. Moreover, being a witness to an investigation of harassment or discrimination is a safeguarded activity, as is seeking a reasonable accommodation for a disability or a good-faith religious conviction. The law guarantees you are free to participate in these processes without fear of reprimand.

Safety and Fair Labor Practices

Your rights are also strongly upheld when you promote safety and fair labor practices at work. Reporting hazards to your manager, or the California Division of Occupational Safety and Health (Cal/OSHA), in case of unsafe work environments implies that you are performing a protected activity under Labor Code 6310.

Similarly, making a workers compensation claim following an on-the-job injury is a fundamental right ensured under Labor Code 132a. Your employer should not be allowed to punish you because you are claiming the benefits to which you are entitled.

It also includes the right to file a wage claim due to unpaid overtime or to talk to fellow workers about your pay to find out whether there is a possibility of pay discrimination. These laws are there so that your physical and financial health is not sacrificed at the hands of your employment.

Whistleblowing and Refusing Illegal Acts

In addition, whistleblower protection is among the best in California. When you report a possible violation of any local, state, or federal law to a supervisor or a government agency, you become a whistleblower, and your actions are covered by Labor Code 1102.5.

Even when your suspicion is incorrect, this would still apply if you acted on a reasonable belief and in good faith. You are also covered in refusing to engage in an activity that would lead to a law break. Your employer cannot dictate to you to either breach the law or lose your job. These safeguards are essential to corporate and civic integrity; you are an integral component of that mechanism.

How to Recognize Retaliation

Retaliation can be as obvious as a termination notice or as subtle as being given the cold shoulder. The first step to self-protection is understanding the various ways it can be. The retaliating employers usually attempt to cover their tracks by claiming they are making valid business decisions; hence, you should be keen to see the indicators.

Overt Retaliatory Actions

The most obvious retaliatory measures cannot be overlooked, resulting in instant damage. Wrongful termination is the most obvious; in this case, you are fired soon after you do a protected activity. Likewise, an abrupt and unaccounted demotion to a lower-responsibility or prestige position is a hallmark of retaliation.

Your employer may also reduce your salary, change your schedule, or provide you with an unwarranted negative performance appraisal to leave a paper trail to justify future disciplinary measures. These direct and overt strategies are meant to punish you and give a powerful message to other employees to remain quiet.

Subtle and Covert Retaliation

Nonetheless, retaliation can be more sinister and expressed in subtle and covert forms that result in a hostile workplace. Your manager may start locking you out of vital meetings or any other social activities you used to attend. You might be moved to a less preferable shift, such as the graveyard shift, or to menial jobs much below your qualifications.

Your workload may suddenly become uncontrollable, or you may have all your essential duties taken away and have nothing to do. Another common tactic is when a supervisor begins documenting exaggerated or fabricated infractions in your personnel file.

This entails recording minor or made-up violations that were not considered, generating a fictional account that you are a bad performer. These small things are meant to make your working life so uncomfortable that you think you have no option other than to resign.

The Laws That Make Retaliation Illegal in California

It is not merely a company policy that you are under protection against retaliation; it is a powerful state and federal law. The legal basis of your rights will make you confident in taking action. These laws give the guidelines for holding employers responsible for their unfair practices.

California’s Fair Employment and Housing Act (FEHA)

The Fair Employment and Housing Act (FEHA) is the key to the anti-retaliation law in California. According to Government Code section 12940(h), it is unlawful for an employer to dismiss, expel, or otherwise discriminate against any individual due to their opposition to any of the practices prohibited by the act or due to filing a complaint, testifying, or otherwise aiding in any proceeding that occurs under FEHA.

This is your primary defense when you rise against discrimination based on race, gender, disability, sexual orientation, age, and other protected characteristics. The anti-retaliation provisions of FEHA are so broad that they are effective instruments of justice.

California Labor Code Protections

In addition to FEHA, the California Labor Code has many provisions that provide specific protection. As stated, the primary whistleblower law in the state is the Labor Code section 1102.5, which safeguards you in case you report on possible legal violations.

The Labor Code section 6310 protects you against retaliation due to raising health and safety concerns, and the Labor Code section 132a makes it a crime to retaliate against an employee who has filed a workers compensation claim. These laws combine to establish an overarching safety net so that your rights as an employee are safeguarded in a broad spectrum of situations.

The California False Claims Act

Besides these state regulations, the California False Claims Act has certain safeguards for employees who report fraud perpetrated by their employer on a governmental body. When you bring or help bring a “qui tam” suit to prevent an employer from embezzling government money, your employer is forbidden to take any action against you.

This motivates employees to become their own attorneys general and guard against fraud of taxpayer money. When you put these protections at the state level together with the federal statutes, it is easy to see that the law is squarely on your side.

How to Prove Retaliation

Suspecting retaliation is one thing; proving it in court is another. The key to making a successful claim is to be able to provide convincing evidence that links your employer’s adverse action to your activity that you are protected. Although you can hardly find direct evidence, like an email sent by your boss saying that you are being punished because you reported harassment, you can create a strong case through circumstantial evidence.

The most crucial evidence is often the timing of the adverse action. When you are dismissed or even demoted a few days or weeks after your employer finds out about your protected activity, this temporal proximity makes a strong inference of a retaliatory motive.

Indeed, the California law acknowledges this with the help of a potent legal instrument in the form of the so-called rebuttable presumption of retaliation. This presumption means the law assumes an adverse action was retaliatory if it occurs within 90 days of you engaging in a specific protected activity.

This does not necessarily make your case, but it goes a long way in supporting your case because it will put the burden of proof on your employer. They must then demonstrate that they acted for a legitimate, non-retaliatory reason.

In addition to the timing, you must carefully record all the cases of suspected retaliation. Keep a detailed journal that includes dates, times, locations, a description of what was said or done, and a list of any witnesses. Save copies of all relevant emails, text messages, performance reviews, and internal memos. Seek signs of unequal treatment; for example, when you were punished because you arrived five minutes late, and other workers who were also late were not punished.

The testimony of fellow employees who witnessed the retaliatory action or who have seen how you performed so well may also be priceless. By piecing together this evidence, you will have a detailed account that can reveal your employer’s claims about his actions being nothing but a pretext to retaliate against you illegally.

What To Do In Case You Suspect That You Are A Victim Of Retaliation

When you feel that you are being retaliated against, it is essential to be strategic to save yourself and your right to the law. The actions that you take during the immediate aftermath can have a significant effect on your situation.

Document Everything

This is the most important thing you can do. Maintain a confidential record of all the cases of unfair treatment. Write the date, time, and a factual account of what happened. If any other person was present, record his or her name. Do not keep this journal on a company computer or device. Save relevant emails, text messages, or digital communications to a personal account or device. This is a modern document that is a strong testimony.

Report the Conduct Internally

Read your company’s anti-retaliation policy and reporting policy in your employee handbook. Making a report to Human Resources or any manager not part of the retaliation provides a record of the problem. It allows your employer a chance to rectify the practice. Nevertheless, you should evaluate your circumstances. This step might not be in your best interest if you feel that reporting internally would result in even greater retaliation.

Contact an Experienced California Retaliation Attorney Immediately

The regulations that regulate retaliation are complicated, and there are time limits, called statutes of limitations, within which a formal complaint should be filed. A lawyer can offer a confidential evaluation of your case, counsel you on addressing your current employment predicament, and clarify the most appropriate course of action. Hiring an attorney early in the proceedings is the best way to guard your rights and not take a false step that might put your claim at risk.

What You Can Recover In A Retaliation Lawsuit

By filing a retaliation lawsuit against your employer, you are seeking both justice and compensation for the harm you have suffered. An effective lawsuit may lead to a substantial award that is meant to compensate for your losses and, in other instances, to penalize the employer due to his/her illegal action.

Economic Damages

Economic damages comprise quantifiable monetary damages suffered. In a retaliation case, these may include:

  • Lost Wages—The money you would have earned if you had not been wrongfully fired, demoted, or passed over for a promotion.
  • Lost Bonuses and Commissions—Any incentive compensation you reasonably would have been paid if the retaliation had not happened.
  • Lost Benefits—The value of lost health insurance, dental or vision coverage, retirement plan contributions, stock options, or other employee benefits.
  • Front Pay—Payment for future lost wages if you cannot return to your job because of the retaliation, or if returning to the position is impossible
  • Job Search Expenses—Out-of-pocket job search expenses such as resume service, traveling for interviews, or training to get a new job.
  • Medical Expenses—If a retaliation caused stress-related health problems that necessitated treatment, including therapy, counseling, or medication, those expenses may also be recoverable.

Non-Economic Damages

Non-economic damages cover the intangible but very real damages caused by retaliation in the workplace. More challenging to quantify, these damages acknowledge the personal harm done to employees. They can include:

  • Emotional Distress—Reimbursement for anxiety, depression, and stress as a result of retaliation.
  • Pain and Suffering—Wider appreciation of the mental distress and pain you go through because of unwarranted treatment.
  • Loss of Professional Reputation—Compensation awarded if retaliation has damaged your reputation, relationships, or career prospects within your industry.
  • Loss of Enjoyment of Life—When retaliation disrupts your ability to lead a whole life beyond the workplace, such as hobbies, social relationships, or family fun.
  • Humiliation and Embarrassment—Compensation for any embarrassment, public stigma, or blow to self-esteem resulting from an employer’s retaliatory conduct.

Punitive Damages

Punitive damages may be awarded to you when an employer’s actions were especially malicious, oppressive, or fraudulent. These damages do not aim to compensate you for a particular loss but to penalize the employer and discourage them and other companies from repeating such behavior. Punitive damages are reserved for the most egregious cases and will significantly add to the overall value of your recovery.

Attorney’s Fees and Legal Costs

In most instances, a successful lawsuit will have your employer pay your attorney fees and legal expenses. This provision enables you to seek justice without incurring the substantial financial cost of litigation. It even levels the playing field so that you can find the best legal representation to champion your rights.

Frequently Asked Questions (FAQs)

You might have questions when you are in a tricky position at work. The legal process may appear daunting, and clear answers may assist you in knowing where you stand and deciding how to act.

Do I need perfect proof to file a claim?

A retaliation case does not require you to have a smoking gun. The law will enable you to construct a claim on the weight of the circumstantial evidence. When the timing is questionable, the reason given by the employer appears to be contrived, and you can demonstrate a history of adverse treatment that only arose after you took part in a covered activity. A seasoned lawyer will be able to analyze your facts and ascertain the quality of your argument.

Can my employer legally fire me while I have a pending retaliation claim?

An employer should not dismiss you as a retaliatory measure in response to your filing of a claim or a suit. It would just make another, and sometimes even more, legal claim against them. This is not to say that you are guaranteed a job, though.

An employer is still permitted to fire you due to a legitimate, non-retaliatory purpose, like a company-wide layoff or a documented poor performance, which started long before your covered activity. If you are dismissed following a claim, the situation will be examined under a microscope.

What is the compensation I can get in a winning case?

Should you prevail in your retaliation lawsuit, you might be entitled to various compensation known as damages. These are intended to compensate you for the harm you have sustained. This may involve compensation of lost wages and benefits, emotional distress damages, and, in certain instances, punitive damages to punish the employer due to especially egregious behavior.

Find a Reliable Harassment Attorney Near Me

The threat of retaliation is the main factor that makes most employees endure illegal conditions in the workplace without speaking out. Your employer knows this and can rely on that fear to keep the status quo. But you should remember that the law is on your side and is there to defend those brave enough to stand up for their rights.

If you have been demoted, fired, or otherwise punished because you exercised your rights in the workplace, retain a harassment lawyer. The Empower Sexual Harassment Attorneys has an experienced legal team committed to protecting San Diego, California, employees against unlawful retaliation. We know the intricacies of the California law of retaliation and are committed to holding employers responsible. To learn about your options, call us at 619-604-3027 for a confidential consultation.