Retaliation for Complaining at Work in California
California law protects employees from retaliation for making certain types of workplace complaints. However, not every complaint to a manager or human resources is legally protected. This distinction is important. An employee may reasonably believe that complaining about unfair treatment, favoritism, excessive workload, poor management, or violations of company policy protects them from being fired. In many situations, it does not.
The key question is usually what the employee complained about and whether the complaint concerned conduct protected by a specific California or federal law.
What Types of Workplace Complaints Are Protected in California?
A workplace complaint may constitute legally protected activity when an employee complains about conduct that the employee reasonably believes violates the law. Depending on the circumstances, protected complaints may include complaints about:
Importantly, an employee does not necessarily have to report the violation to the government. Under appropriate circumstances, an internal complaint to a supervisor, manager, Human Resources, or another person with authority to investigate or correct the violation can be protected activity.
What Complaints Are Usually Not Protected?
One of the most common misconceptions about workplace retaliation is that any complaint to HR protects an employee from termination. It does not. Many legitimate workplace grievances do not implicate a law that prohibits retaliation. For example, complaints about the following issues, standing alone, generally do not create the same legal protection:
The Difference Between an Unprotected and Protected Complaint
Consider two employees who both believe their supervisor is showing favoritism.
The first employee tells HR: “My supervisor favors my coworker even though I work harder and have better performance.” That may be a legitimate workplace grievance, but by itself it does not necessarily suggest unlawful discrimination.
Now consider an older employee who tells HR: “My supervisor has been favoring significantly younger employees and recently asked when I plan to retire. I believe my age may be affecting how I am being treated.”
The second complaint potentially puts the employer on notice of age discrimination and may therefore constitute protected activity. The words used in a complaint can matter because the employer generally must have sufficient notice that the employee is opposing or reporting potentially unlawful conduct.
You Don't Necessarily Have to Prove That Your Complaint Was Correct
An employee does not necessarily lose retaliation protection simply because an investigation or lawsuit later determines that the conduct complained about was not actually unlawful.
In the discrimination context, California courts have recognized that an employee may engage in protected activity when the employee has a reasonable and good-faith belief that unlawful conduct occurred.
This distinction is important. There is a significant difference between making an accusation based purely on speculation and complaining based on specific facts that reasonably suggest discrimination, harassment, retaliation, or another violation. For instance, an employee who believes age discrimination is occurring because a manager repeatedly makes comments about retirement, refers to the need for “younger energy,” and treats substantially younger employees more favorably has a factual basis for raising the issue even if the employee cannot yet prove discrimination.
What Can Workplace Retaliation Look Like?
Termination is the most obvious form of retaliation, but retaliation can take other forms. Depending on the circumstances, retaliatory actions may include:
How Can an Employee Prove Retaliation?
Employers rarely admit that an employee was terminated because they complained. Retaliation cases therefore often depend on circumstantial evidence. Relevant evidence may include:
Timing. A termination, suspension, or sudden disciplinary campaign shortly after a protected complaint may support an inference of retaliation.
Prior performance history. Strong reviews followed by sudden performance criticism after a complaint can raise questions about the employer's stated reason for its actions.
Changing explanations. Different or inconsistent explanations for a termination may undermine the employer's stated reason.
Departure from normal procedures. An employer's failure to follow its ordinary disciplinary or investigative procedures can sometimes be relevant.
Treatment of other employees. Evidence that similarly situated employees who did not complain were treated differently may also be significant.
Statements by management. Comments expressing anger or frustration about the employee's complaint can be particularly important evidence.
No single fact automatically proves retaliation. The strength of a claim usually depends on how the evidence fits together.
A Protected Complaint Does Not Make You Immune From Termination
Employees sometimes misunderstand the term “protected activity.”
Making a protected complaint does not mean that an employer is physically prevented from terminating you. Nor does it prevent an employer from terminating you for a legitimate reason unrelated to your complaint.
It means that the employer may not lawfully retaliate against you because you engaged in protected activity.
Unfortunately, employers often violate anti-retaliation laws. When that happens, the issue becomes whether there is sufficient evidence to establish that the protected complaint contributed to the employer's decision to terminate, discipline, demote, or otherwise retaliate against the employee.
If You Are Considering Making a Complaint While Still Employed
How and when an employee raises a workplace complaint can have significant practical consequences.
Before making a serious complaint, consider:
If you believe your employment is already in jeopardy, obtaining legal advice before submitting a complaint may also help you understand the risks and protections that apply to your particular situation, whether complaining now v later is right step for you, and how to frame your complaint for maximum legal protection.
Frequently Asked Questions About Workplace Retaliation
Is complaining to HR protected activity in California? Sometimes. Protection depends primarily on the substance of the complaint, not simply on the fact that it was made to HR. A complaint about suspected discrimination, harassment, wage violations, safety violations, or other unlawful conduct may be protected. A general complaint that a supervisor is unfair or unpleasant may not be.
Can I be fired after making a complaint to HR? Yes, an employer can terminate an employee after a complaint for legitimate reasons unrelated to the complaint. What the employer generally cannot lawfully do is terminate the employee because of legally protected activity.
Is complaining about bullying protected? Not necessarily. Bullying, rude behavior, and workplace hostility are not automatically unlawful. If the bullying is connected to race, sex, disability, age, religion, or another legally protected characteristic, however, a complaint about that conduct may implicate anti-discrimination and anti-harassment protections.
Do I have to prove that my employer actually broke the law? Not always. Certain retaliation laws protect employees who reasonably and in good faith report conduct they believe is unlawful, even when the alleged violation is ultimately not proven.
What if I was fired shortly after complaining? Timing can be important evidence, but timing alone does not automatically establish retaliation. The reason for the complaint, the decision-makers' knowledge of it, your performance history, the employer's explanation, and other surrounding circumstances should all be evaluated.
A meaningful evaluation of a potential retaliation claim requires looking at the complaint, timing, decision-makers involved, performance history, disciplinary record, employer's stated reason for its actions against the employee, and any evidence suggesting that stated reason may not be genuine. Submit your potential case for prompt evaluation.
The key question is usually what the employee complained about and whether the complaint concerned conduct protected by a specific California or federal law.
What Types of Workplace Complaints Are Protected in California?
A workplace complaint may constitute legally protected activity when an employee complains about conduct that the employee reasonably believes violates the law. Depending on the circumstances, protected complaints may include complaints about:
- Discrimination based on race, age, disability, sex, pregnancy, religion, national origin, or another protected characteristic;
- Sexual harassment or other unlawful workplace harassment;
- Wage and overtime violations;
- Workplace health and safety violations;
- Fraud, theft, or other unlawful conduct;
- Violations of state, federal, or local laws and regulations;
- Certain patient safety violations;
- Requests for or interference with protected medical or family leave;
- Disability discrimination or failure to provide reasonable accommodation; and
- Refusing to participate in conduct that would violate the law.
Importantly, an employee does not necessarily have to report the violation to the government. Under appropriate circumstances, an internal complaint to a supervisor, manager, Human Resources, or another person with authority to investigate or correct the violation can be protected activity.
What Complaints Are Usually Not Protected?
One of the most common misconceptions about workplace retaliation is that any complaint to HR protects an employee from termination. It does not. Many legitimate workplace grievances do not implicate a law that prohibits retaliation. For example, complaints about the following issues, standing alone, generally do not create the same legal protection:
- A manager being rude or difficult;
- General workplace bullying that is unrelated to a protected characteristic;
- Favoritism or office politics;
- Disagreement with a performance review;
- Excessive workload or unreasonable deadlines;
- Poor training;
- Unfair distribution of assignments;
- Disagreement with management decisions; or
- Violations of an employer's internal policies that do not also involve a violation of law.
The Difference Between an Unprotected and Protected Complaint
Consider two employees who both believe their supervisor is showing favoritism.
The first employee tells HR: “My supervisor favors my coworker even though I work harder and have better performance.” That may be a legitimate workplace grievance, but by itself it does not necessarily suggest unlawful discrimination.
Now consider an older employee who tells HR: “My supervisor has been favoring significantly younger employees and recently asked when I plan to retire. I believe my age may be affecting how I am being treated.”
The second complaint potentially puts the employer on notice of age discrimination and may therefore constitute protected activity. The words used in a complaint can matter because the employer generally must have sufficient notice that the employee is opposing or reporting potentially unlawful conduct.
You Don't Necessarily Have to Prove That Your Complaint Was Correct
An employee does not necessarily lose retaliation protection simply because an investigation or lawsuit later determines that the conduct complained about was not actually unlawful.
In the discrimination context, California courts have recognized that an employee may engage in protected activity when the employee has a reasonable and good-faith belief that unlawful conduct occurred.
This distinction is important. There is a significant difference between making an accusation based purely on speculation and complaining based on specific facts that reasonably suggest discrimination, harassment, retaliation, or another violation. For instance, an employee who believes age discrimination is occurring because a manager repeatedly makes comments about retirement, refers to the need for “younger energy,” and treats substantially younger employees more favorably has a factual basis for raising the issue even if the employee cannot yet prove discrimination.
What Can Workplace Retaliation Look Like?
Termination is the most obvious form of retaliation, but retaliation can take other forms. Depending on the circumstances, retaliatory actions may include:
- Termination;
- Demotion;
- Suspension;
- Reduction in compensation or hours;
- Undesirable reassignment;
- Removal of significant responsibilities;
- Sudden negative performance reviews;
- Disciplinary write-ups;
- Exclusion from meetings or opportunities;
- Increased scrutiny; or
- Other materially adverse changes in working conditions.
How Can an Employee Prove Retaliation?
Employers rarely admit that an employee was terminated because they complained. Retaliation cases therefore often depend on circumstantial evidence. Relevant evidence may include:
Timing. A termination, suspension, or sudden disciplinary campaign shortly after a protected complaint may support an inference of retaliation.
Prior performance history. Strong reviews followed by sudden performance criticism after a complaint can raise questions about the employer's stated reason for its actions.
Changing explanations. Different or inconsistent explanations for a termination may undermine the employer's stated reason.
Departure from normal procedures. An employer's failure to follow its ordinary disciplinary or investigative procedures can sometimes be relevant.
Treatment of other employees. Evidence that similarly situated employees who did not complain were treated differently may also be significant.
Statements by management. Comments expressing anger or frustration about the employee's complaint can be particularly important evidence.
No single fact automatically proves retaliation. The strength of a claim usually depends on how the evidence fits together.
A Protected Complaint Does Not Make You Immune From Termination
Employees sometimes misunderstand the term “protected activity.”
Making a protected complaint does not mean that an employer is physically prevented from terminating you. Nor does it prevent an employer from terminating you for a legitimate reason unrelated to your complaint.
It means that the employer may not lawfully retaliate against you because you engaged in protected activity.
Unfortunately, employers often violate anti-retaliation laws. When that happens, the issue becomes whether there is sufficient evidence to establish that the protected complaint contributed to the employer's decision to terminate, discipline, demote, or otherwise retaliate against the employee.
If You Are Considering Making a Complaint While Still Employed
How and when an employee raises a workplace complaint can have significant practical consequences.
Before making a serious complaint, consider:
- What specific conduct you are complaining about;
- Why you believe that conduct may violate the law;
- Whether you have documents or other evidence supporting your concerns;
- Who should receive the complaint;
- Whether the complaint should be made in writing; and
- How you can describe the problem accurately without exaggerating facts you cannot substantiate.
If you believe your employment is already in jeopardy, obtaining legal advice before submitting a complaint may also help you understand the risks and protections that apply to your particular situation, whether complaining now v later is right step for you, and how to frame your complaint for maximum legal protection.
Frequently Asked Questions About Workplace Retaliation
Is complaining to HR protected activity in California? Sometimes. Protection depends primarily on the substance of the complaint, not simply on the fact that it was made to HR. A complaint about suspected discrimination, harassment, wage violations, safety violations, or other unlawful conduct may be protected. A general complaint that a supervisor is unfair or unpleasant may not be.
Can I be fired after making a complaint to HR? Yes, an employer can terminate an employee after a complaint for legitimate reasons unrelated to the complaint. What the employer generally cannot lawfully do is terminate the employee because of legally protected activity.
Is complaining about bullying protected? Not necessarily. Bullying, rude behavior, and workplace hostility are not automatically unlawful. If the bullying is connected to race, sex, disability, age, religion, or another legally protected characteristic, however, a complaint about that conduct may implicate anti-discrimination and anti-harassment protections.
Do I have to prove that my employer actually broke the law? Not always. Certain retaliation laws protect employees who reasonably and in good faith report conduct they believe is unlawful, even when the alleged violation is ultimately not proven.
What if I was fired shortly after complaining? Timing can be important evidence, but timing alone does not automatically establish retaliation. The reason for the complaint, the decision-makers' knowledge of it, your performance history, the employer's explanation, and other surrounding circumstances should all be evaluated.
A meaningful evaluation of a potential retaliation claim requires looking at the complaint, timing, decision-makers involved, performance history, disciplinary record, employer's stated reason for its actions against the employee, and any evidence suggesting that stated reason may not be genuine. Submit your potential case for prompt evaluation.