Workplace retaliation in California takes place when an employer punishes an employee for engaging in legal activity protected under state and federal law. Workplace retaliation can include any of the following actions:
- Salary reduction
- Job or shift reassignment.
- Leaving the employee out of growth and mentoring opportunities
When is Retaliation in California is Considered Illegal?
In California, workplace retaliation is considered illegal when the employer punishes his employees for the following actions:
- Reporting illegal conduct
- Refusing to engage in illegal conduct
- Reporting fraud
- Filing a wage claim with the California Labor Commissioner
- Filing discrimination lawsuits
- Reporting of workplace harassment
- Reporting of workplace discrimination
- Assisting other employees in filing a complaint or lawsuit of unlawful activity in the workplace.
The employee, who engaged in protected activity and was demoted or terminated as a result can file a claim with the Fair Employment and Housing Council. The FEHC investigates the claim and if there is enough evidence, proceeds with the claim. If not, the claim will be closed. Then the employee will be able to file a lawsuit against his employer.
By filing a lawsuit, an employee can recover compensation for:
- Attorney fees and costs
- Back pay and front pay
- Lost benefits and mental anguish.
An employee is also protected from workplace retaliation under federal law in case he files a harassment or discrimination complaint at work either internally or to an outside body like the Equal Employment Opportunity Commission. Federal law also protects an employee who cooperates in Equal Employment Opportunity Commission investigations or serves as witnesses in EEOC litigation or investigations.
The Legal Standard for a Retaliation Claim in California
According to California Labor Code Section 1102.5, an employee can sue his employer for retaliation in case:
- An employee engaged in protected activity
- Employer subjected the employee to an adverse employment action,
- The two are related.
It is important to mention, that the employee is not required to prove the employer’s action was illegal to establish the claim. To prove a retaliation claim in California, an employee must show the following:
- He has engaged in a “protected activity”
- He suffered a tangible adverse employment action, such as termination or demotion
- The main reason for being terminated or demoted was that protected activity.
Differences Between Whistleblowing and Retaliation Claims
Very often retaliation and whistleblowing claims are discussed interchangeably however, they are not identical.
Whistleblowing typically involves complaints or claims which focus on activities prohibited by law and activities that compromise public safety. A retaliation claim is more connected with individual employee rights, such as the right to speak up against harassment, the right to be paid overtime, etc.
Types of Retaliation Claims in California
Under California law there are the following types of retaliation claims:
- Discrimination claim retaliation
- Union and concerted activity retaliation
- Public employees and First Amendment rights retaliation
- Wage and hour retaliation
- Political activity retaliation
- Workers’ comp retaliation