California Retaliation Claims

Most federal and California laws that protect the rights of employees also prohibit employers from retaliating against employees who exercise those rights. Retaliation by employers is common. According to the Equal Opportunities Employment Commission, almost half of all claims filed with the agency are retaliation claims.

Retaliation might consist of termination, demotion, or other actions that reduce an employee’s pay. In addition, most employment laws define retaliation to include other acts that harm an employee in nonfinancial ways.

If you believe you have been the victim of retaliation at work because you exercised a right permitted by a state or federal law, an employment lawyer at Law Offices of Karan K. Gill can give you the help you need. Our office represents current and former employees in Oakland, San Jose, Fairfield, and all other Bay Area communities

Retaliation Laws

The most important laws that protect employees from retaliation are:

• Employment Discrimination Laws. Both Title VII of the Civil Rights Act and California’s Fair Employment and Housing Act prohibit employment discrimination. Both of those laws also prohibit retaliating against an employee who engages in an activity that is protected by those laws.
• Wage Laws. Both the federal Fair Labor Standards Act and California labor laws regulate the payment of minimum wage and overtime, and impose other obligations on employers concerning breaks, wage statements, and other aspects of the employment relationship. Those laws prohibit retaliation against an employee who exercises rights protected by the law.
• Family Leave Laws. The federal Family and Medical Leave Act, the California Family Rights Act, and other state and federal laws require employers to provide leave to employees under certain circumstances, including personal or family illness and the birth or adoption of a child. Family leave laws prohibit retaliation for asking or taking a leave that is permitted by law.
• Workplace Safety Laws. The federal Occupational Safety and Health Act (OSHA) and its California counterpart, Cal-OSHA, require employers to maintain a safe and healthy workplace and to obey detailed safety regulations. Federal and state laws protect employees from retaliation when they report a violation of a safety regulation.
• Whistleblower Laws. In addition to OSHA, many whistleblower laws protect employees who notify appropriate agencies of an employer’s violation of federal statutes or regulations, including environmental regulations and laws that prohibit fraudulent billings to government agencies. The Whistleblower Protection Act also protects federal employees who report misconduct within the agency that employs them. California law has similar protections for private and public employees who report regulatory violations or misconduct by their employers.
• California Public Policy. As a matter of public policy, California courts permit employees to seek a remedy for wrongful discharge or demotion when employers punish them for engaging in conduct that the public policy of California protects.

Retaliation against employees for actions that are protected by law may entitle employees to significant remedies. An employment lawyer at KKG Law can help California employees recover compensation when they are subject to retaliation in the workplace.

Protected Activity

Different laws protect different activities from retaliation. For example, laws that prohibit discrimination generally protect two kinds of conduct:

• Opposition to discrimination. An employee opposes discrimination by reporting it to the employer or by complaining to the employer about discriminatory conduct or harassment that the law prohibits. Helping another employee make that complaint is also protected conduct. Even if the complaint turns out to be unfounded, the act of opposing discrimination is protected if the report or complaint was made in the good faith belief that discrimination or harassment occurred.
• Participation in legal proceedings. Filing a discrimination claim with a state or federal agency or a discrimination lawsuit in court are acts that are protected by law. Testifying in such a proceeding is also a protected act.

Wage laws protect the right to file a claim with a government agency or a lawsuit seeking compensation for unpaid overtime or minimum wage. Wage laws also protect employees from retaliation when they make a formal or informal complaint to employers about their failure to comply with wage laws, and when they assert their right to be given wages or benefits that the law requires.

Family leave laws protect employees who take or request a leave that is authorized by law. Even if the employer provides the requested leave, the employer can violate the law by retaliating after the leave ends. For example, refusing to allow the employee to return to work after taking a leave can be retaliatory if the refusal was motivated by the employee’s exercise of the right to take a leave.

Workplace safety and whistleblower laws protect employees when they report a violation of the law to an appropriate agency. Each law defines how and to whom the whistle must be blown to trigger protection against retaliation.

Court decisions that protect against retaliation as a matter of public policy typically protect employees who engage in acts that the well-established policy of California protects. Examples include reporting an employer’s violation of the law, refusing an order to commit an illegal act, and refusing to sign an employment agreement that contains an unlawful non-compete agreement.

Retaliatory Conduct

Different laws define retaliation in different ways, but the common thread is that an employer does something that harms an employee because the employee engaged in protected activity. The nature of the harmful action that retaliation laws prohibit depends on the particular law.

All the laws mentioned above define termination and demotion as prohibited conduct. Other adverse acts that cause financial harm to an employee, such as a pay reduction, loss of benefits, or denial of a raise or promotion may also be forbidden acts of retaliation. In some cases, acts that may eventually cause financial harm, such as disciplinary “write-ups” and unfavorable performance reviews, may be regarded as retaliatory.

The broadest protections are provided by discrimination laws. Those laws define conduct as retaliatory if it tends to discourage employees from engaging in protected activities. For example, assigning overwhelming or undesirable job duties or spreading malicious gossip about an employee would be retaliatory acts if they were motivated by the employee’s protected activity.

In some cases, retaliation creates a work environment that becomes intolerable. When an employee reasonably quits because of the work environment, the law treats the employee’s decision to quit as a constructive discharge. Conduct that essentially forces an employee to quit is treated as a termination by the employer.

Remedies for Retaliation

Remedies for retaliation depend on the specific law that was violated and the specific kind of retaliation that the employee experienced. In appropriate cases, remedies might include:

• Reinstatement to a former position
• An award of back pay
• An award of future pay instead of reinstatement
• Compensation for emotional distress
• Punitive damages

An employment lawyer at KKG Law can help employees understand the remedies that might be available for an employer’s retaliatory conduct. Since there is often a short deadline for bringing retaliation claims, it is important to seek legal advice as soon as the retaliatory act occurs.