There are several laws that protect employees from retaliation, but they often seem contradictory because California is an at-will employment state. That means employers can fire an employee for any reason or no reason unless the termination results in a violation of the law.
According to surprising statistics by DFEH (California’s Department of Fair Employment and Housing), retaliation claims contribute to 19% (2,717) of the total (22,584) workplace-related claims in the state. (These are just the registered retaliation complaints, but the numbers are higher)
While it seems like there is no end to retaliation because of the tactics employers play to stay at large, you can still take action against the wrongdoing.
This article explores everything about retaliation in the workplace, including federal and state laws and your rights as an employee. We will also discuss proving your retaliation claim to secure fair compensation.
Retaliation occurs when an employer punishes a worker for engaging in a protected activity. Such activities could be anything the law protects, such as filing a complaint against discrimination or harassment or asking for employment benefits.
From adverse action to verbal conduct, retaliation can take several forms. Some employees get fired for their actions, while others might get demoted or receive an unexplained pay cut. However, adverse employment actions can also include increased supervision and scrutiny, negative performance evaluations, or being placed on a performance improvement plan.
Retaliation is mostly illegal when the employer’s action deters a reasonable employee or is against the employment law.
Let’s understand retaliation better with some real-life examples settled by EEOC:
The EEOC ordered a privately-owned farming company and its contractor to pay $300,000 because the farm manager sexually harassed four female workers by touching their private parts and leering at them.
EEOC also commented that the manager retaliated against the workers who refused his sexual advances by terminating or refusing to rehire them.
A chair manufacturer in Chino, California, fired employees for reporting discrimination. According to EEOC, the company retaliated against two employees- a human resource assistant and a mechanic.
Since such alleged conduct violates Title VII of the Civil Rights Act of 1964, the authorities filed a lawsuit (Civil Action No. 1:13-cv-00066).
Besides the $92,500 monetary relief, the company was ordered a one-year consent decree to settle the lawsuit to prevent retaliation against the workers.
As per EEOC, a harassment and retaliation lawsuit was filed against Cardinal Health and AppleOne due to harassment against African American employees based on race.
The companies in question retaliated against these employees when they filed a claim of discrimination based on a protected characteristic.
Quoted from the press release, “Cardinal Health has agreed to pay $1.4 million to resolve the claim. The company, along with AppleOne, also said to implement sweeping injunctive relief as a part of the settlement.”
Swami’s Case and Honey’s Bistro- a popular chain of casual counter and table restaurants, violated federal employment law by allowing a class of employees to harass and retaliate against some female employees.
In the press release, EEOC stated that in 2019 around 9 locations of this cafe based in San Diego, California, allowed a class of female employees, including teenagers, to be harassed by male co-workers and supervisors.
Employees complaining about the misconduct were retaliated against, as some were asked to quit. The Equal Employment Opportunity Commission seeks monetary damages for the complainants, including punitive and compensatory damages.
Although California is an at-will state, that does not mean employers are free to retaliate against their workers. Several state and federal laws extend protection to the affected employees while protecting their rights. Below we have listed some of these laws categorized under federal and state sections:
Title VII prohibits retaliation against employees who engage in protected activity related to workplace discrimination. For example, if an employee files a complaint, participates in an investigation, or opposes discriminatory practices, they are protected by the law.
The act prohibits employers from taking a negative job action such as termination, demotion, or sexual harassment in response to an employee’s protected activity or action.
The FLMA grants eligible employees the right to take unpaid leave for qualifying reasons such as the birth or adoption of a child, caring for a family member with a serious health condition, or their serious health condition.
The act prohibits employers in California and the United States from retaliating against employees who take leave or attempt to exercise their rights under FMLA.
This act protects employees who disclose information about potential wrongdoing and misconduct within their organization. For example- if a worker complains against their employer for discrimination against certain employees or involves in an investigation, they are covered under this act. This federal law makes it illegal for employers to retaliate against such employees.
While ADA is mainly an anti-discrimination law, it also comes into force when the employer retaliates against an employee based on their disability. If a worker with protected disabilities tries to assert their rights under the act, such as requesting reasonable benefits, they may experience retaliation.
FEHA is the primary law in California that protects employees with protected characteristics such as age, religion, gender, and more from retaliation, gender discrimination, and harassment.
Compared to federal law, FEHA covers a broader range of protected characteristics, thus, offering more protection.
💡A Fact: The California Fair Employment and Housing Act only applies to employers with 5 or more employees.
Like the federal law, California also has a whistleblower protection act. The primary purpose of this act is to encourage employees’ disclosure, protect them and promote compliance with laws and regulations related to employment.
Workers that reach out to their employers and administrative authorities to report a violation of law or misconduct are protected under this act.
CFRA provides every eligible employee in California with 12 weeks of unpaid job-protected leave to care for their family or medical reasons, including caring for a newborn or an adopted child.
Employers cannot retaliate against employees who are eligible for leave under CFRA and request it.
Section 6310 prohibits employers in the state from retaliating against workers who complain about health or safety conditions or practices at the workplace. It also applies if the employees testify about the conditions in any proceedings related to poor healthful working conditions.
Under this law, employees are also protected if they report a work-related injury, fatality, or illness or for requesting access to occupational illness records or reports.
Employees who report a violation of state or federal statutes in their workplace get protection under Section 1102.5. The section also prohibits employers from retaliating or taking negative action against an employee who refuses to participate in activities that would result in a violation of state and federal laws.
And there is an exhaustive list of state and federal laws that protect employees from retaliation. If you think your employer has retaliated against you, do not wait and contact Hershey Law. Our employment attorneys can investigate the matter to help you file a complaint and put an end to your employer’s wrongdoings.
Retaliation mostly occurs when the employees try to practice their rights under the law or indulge in a protected characteristic related to any of these rights. To stand up for your rights and to know if your employer has illegally retaliated against you, it is crucial to know these employee rights. These include:
You and other employees have the right to work in a safe environment. The workplace should be free from hazardous and dangerous conditions that could cause an employee illness or injury.
According to the latest amendment in the law, the minimum wage in California is $15.50. Also, the state has strict laws regarding worker’s compensation, meal, and rest breaks.
If you are a non-exempt employee in California, you must receive a paid 10-minute rest break for every four hours worked in a day. Similarly, you are eligible to receive a 30-minute unpaid meal break for every five hours worked in a day.
👉Must read: Understanding California Wage and Hour Laws
The most common adverse effect of retaliation is wrongful termination. However, it is unlawful for an employer to lay off their workers for filing a complaint or practicing their rights.
Even as an employee, you still have the right to privacy in your personal phone and locker (if your employer provides any). However, the right to privacy might not be applicable if you use an employer’s equipment, such as a computer and internet connection, for personal reasons.
Reasonable accommodations include anything that an employee deserves according to the law. For example, the ADA Act makes it mandatory for employers in California and other states to provide reasonable accommodations to employees with disabilities.
Freedom from retaliation is also one of your employment rights. The state and federal laws prohibit employers from taking action against their workers for:
These are just a handful of rights that you, as a California employee, get. If you feel your employer is violating any of these or some other employment rights, you must seek legal help to cope with it.
Contact the professional employment lawyers at Hershey Law to know more about your rights and if you can stand a retaliation claim against your employer for their actions.
Proving retaliation in the workplace is important because it can help you obtain fair compensation for the damages you have suffered. However, in an at-will state like California, proving illegal retaliation can be a complex process.
Before you file a complaint with the authorities such as the state’s fair employment agency, you must ensure these elements exist:
Establishing a connection between the protected activity and the action taken against you lays the foundation of your retaliation claim. So make sure to have Los Angeles employment attorneys assist you throughout the process.
Gather evidence supporting your claims, such as emails, memos, text messages, and other written communications. Additionally, you can contact witnesses, such as your colleagues, who may have observed retaliation and have relevant information to share.
👉Must read: What Evidence Matters in a Retaliation Lawsuit
Make sure to create copies of any relevant documents, including performance evaluations, disciplinary records, or any other documentation that may be pertinent to your claim. These documents can help establish a pattern of retaliation or show inconsistencies in the employer’s actions.
It is advisable to have an employment attorney specializing in retaliation cases. The lawyers can guide you on your specific situation, assess the strength of your claim, and help you navigate the legal processes.
Book a free consultation with our Los Angeles employment and labor law attorneys and discuss your case.
If your attorneys say you have a valid claim, you may need to file a complaint with the appropriate state or federal agency, such as the California Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission. These agencies can investigate your claim and potentially take legal action on your behalf.
Besides filing a complaint with an administrative agency, you have some more legal options to settle your claim. These include:
If you do not want to file a complaint and then wait for a resolution, you can negotiate a settlement with your employer.
Settlement negotiations can involve discussions with your employer and their legal representative to reach an agreement that addresses your concerns and provides compensation or other remedies for the damages you have incurred due to adverse action.
✍️ Note – If you are considering negotiation, hire the best employment attorneys in Orange County. You need to create a strong file with the evidence to convince your employer to settle the claim you have asked for.
If the EEOC investigation finds insufficient evidence of retaliation or the agency chooses not to file a lawsuit, it will issue you a Right-to-Sue notice. This permits you to file a lawsuit in state and federal court against the employer independently.
Here your lawyer will assist you in filing a lawsuit and then sending a legal notice to the employer.
Whether you move forward with EEOC or pursue a lawsuit with the help of an employment lawyer, you can get a range of damages from the claim. These include but are not limited to:
If you prove that your employer retaliated against you, which resulted in a salary reduction or wrongful termination, you can recover the lost wages you have suffered due. With the help of a lawyer, you can also recover the wages you may lose if the employer does not reinstate you to your former position.
If you have lost any benefits due to retaliation, you can claim them also. For example, if your termination caused your health insurance to end abruptly and then you dealt with a medical problem (which would’ve been covered by your employer’s insurance), you can claim the financial loss you have borne.
Proving that retaliation brought mental stress and suffering can help you seek an award. However, your lawyer must prove the pain and suffering you have been through.
One thing to note is that these damages do not easily translate into money or financial awards. It completely depends on the jury whether to award you for pain and suffering and what to award.
If you win the case against your employer, the court may order them to pay your lawyer’s fees. This means you can easily cover the legal expense, so do not hesitate to file a complaint.
These damages are meant to punish employers. For example, if an employer keeps retaliating against their workers despite multiple complaints filed against them, the jury may order punitive damages.
If your employer has retaliated against you or anyone from your colleagues, we can help! From assisting you in gathering evidence to filing a complaint with the right authorities, our lawyers work closely with you throughout the legal process.
We are dedicated to helping you get the justice and fair compensation you deserve. Since Hershey Law operates on a contingency-fee basis, we do not charge you anything until we win the case.
Call us at 310-929-2190 today for a free consultation, and ask questions to our professional employment and wrongful termination attorney in Orange County.