Workplace Retaliation Defined Under California Law
Retaliation is one type of a claim that may form a basis for a wrongful termination lawsuit in California. A retaliation claim can be made when the employer takes adverse employment action against an employee, such as demotion or termination or significant negative change in working conditions or benefits, in reprisal or as a punishment for that employee's engaging in one of the defined protected activities. Such protected activity could be opposing an employment practice prohibited by State or Federal law, filing a charge, testifying, or assisting or participating in certain investigations, participating in a hearing of the employee's own claim or the claim of another employee under a statute that prohibits retaliation for such activity.
Here are some of the more common protected activities within the meaning of California anti-retaliation laws are:
Proving that an employee has been terminated in retaliation for engaging in one or more of the protected activities and not for the reason stated by the employer (performance, insubordination, job restructuring, etc.) often requires careful analysis of the available evidence to support that kind of claim. However, if you have been terminated shortly after engaging in one or more of the above activities, and you have a track record of good performance with the same company, chances are that you have been subjected to unlawful retaliation.
When an employee is terminated for an activity that's not considered "protected", this cannot give rise to a retaliation claim. For instance, an employee who was terminated for complaining that his boss micromanaged him or raised his voice at him or disrespected him, would not give rise to a retaliation claim, because those kinds of complaints (unlike complaining about unlawful discrimination, sexual harassment, safety violations, etc..) is not considered a protected activity. Likewise, being terminated for reporting certain internal irregularities (that are not considered crimes or violations of state or federal statutes) will not give rise to a retaliation claim, because complaining about the violations that only affect the employer itself is in most cases not a protected activity, as opposed to violations that are considered a crime or fraud (such as insider trading, tax evasion, overbilling clients, etc.). Please also see basic information on how to prove retaliation.
Here are some of the more common protected activities within the meaning of California anti-retaliation laws are:
- Complaining (and filing a complaint) about sexual, gender, racial, religious or disability discrimination or harassment at workplace;
- Filing a workers compensation claim, requesting accommodations to a disability (ADA / FEHA).
- Exercising rights to FMLA/CFRA leave due to serious medical condition.
- Exercising the right to pregnancy leave or pregnancy (disability) accommodations.
- Engaging in union related or other political activity.
- Participating in legal or other kinds of official investigation, or participating in an internal harassment or discrimination investigation as a witness against an employee or a manager who was accused of harassment.
- Complaining about labor code violations, such as filing a complaint about not being paid overtime compensation in court or with DLSE.
- Complaining about violations at workplace that affect public at large (embezzlement of public funds, tax fraud, etc.)
- Complaining about health and safety code violations at workplace.
- Complaining about patient health and safety at a healthcare facility.
- Disclosing information to a government or law enforcement agency, where the employee reasonably believes that the information is regarding a violation of state or federal law, or refusing to participate in an activity that would violate the law. "Reasonable believes" standard is critical, because this means that if the underlying action by the employer is later found not be illegal or discriminatory, the employer might still be liable for retaliation (Labor Code section 1102.5).
Proving that an employee has been terminated in retaliation for engaging in one or more of the protected activities and not for the reason stated by the employer (performance, insubordination, job restructuring, etc.) often requires careful analysis of the available evidence to support that kind of claim. However, if you have been terminated shortly after engaging in one or more of the above activities, and you have a track record of good performance with the same company, chances are that you have been subjected to unlawful retaliation.
When an employee is terminated for an activity that's not considered "protected", this cannot give rise to a retaliation claim. For instance, an employee who was terminated for complaining that his boss micromanaged him or raised his voice at him or disrespected him, would not give rise to a retaliation claim, because those kinds of complaints (unlike complaining about unlawful discrimination, sexual harassment, safety violations, etc..) is not considered a protected activity. Likewise, being terminated for reporting certain internal irregularities (that are not considered crimes or violations of state or federal statutes) will not give rise to a retaliation claim, because complaining about the violations that only affect the employer itself is in most cases not a protected activity, as opposed to violations that are considered a crime or fraud (such as insider trading, tax evasion, overbilling clients, etc.). Please also see basic information on how to prove retaliation.