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Workplace Retaliation Attorney

Under California labor laws, employers may not retaliate against their workers for taking certain protected actions. The anti-retaliation laws protect workers from suffering adverse treatment at work for doing what they are legally required or allowed to do.

These workplace retaliation laws fulfil a very important role in the protection of workers’ rights. Although workers who are fired from their job are protected under wrongful termination laws, others who do not lose their job but are deprived of important workplace benefits may have been left without a remedy.

The anti-retaliation laws provide a remedy for these workers even if they were not terminated from work. So long as a worker has experienced negative treatment at work in retaliation for exercising their rights under California labor laws, they have a remedy.

Retaliation can occur in a wide range of circumstances, making it one of the most common complaints that workers file against employers. However, not all instances of wrongful or unfair treatment at work will qualify as retaliation.

What is workplace retaliation?

Ordinarily, employment in California is “at-will”. This means that your employer can fire you at any time or for any reason, or for no reason at all. In addition, they have the ultimate say over how you work, what work you do, what benefits to offer, and other matters relating to your employment.

However, there are certain aspects of your employment that are regulated by law. An employer cannot fire workers for reasons that breach the employment contract or that are contrary to the provisions of California labor laws. Employers are also not allowed to engage in retaliation against employees.

Workplace retaliation in California occurs when your employer causes you to suffer a negative employment action because you engaged in a protected activity. The negative employment action could be a termination of your employment, in which case you may be able to sue for wrongful termination.

Your employer could also make your working conditions so intolerable you have no choice but to resign. In such a case, you may also be able to sue for constructive termination or a hostile work environment, where you do not resign.

There are also several other subtle ways in which workplace retaliation can occur. Some of these include:

  • Undeserved negative performance reviews
  • Transfer to less desirable tasks or shifts
  • Denial of job benefits you have earned
  • Denial of a promotion or raise you believe you deserved
  • Denial of access to trainings or opportunities that would help advance your career
  • Unfairly increased workload

Any of these acts may be one-off or they may constitute a pattern of wrongful negative treatment that unfairly prejudices you for taking a protected action. California Jury Instructions CACI 2505.

For all of these less subtle signs of employer retaliation, you may be able to file a complaint to stop the wrongful action and recover compensation. Not all of these actions will amount to retaliation though.

We have discussed some of the actions that might constitute negative or unfair employment treatment. But for them to amount to retaliation, you must also have experienced those actions because you engaged in a protected activity.

Protected activities under California retaliation laws

There are specific activities that are regarded as protected under California law. It is only in respect of these activities that you may file a complaint of workplace retaliation. Thankfully, the list of protected activities outlined by the California Department of Industrial Relations includes the most significant protections that workers require. Here are the anti-retaliation laws and the activities they protect.

    • Common law: This is essentially court-developed law that specifies an employer cannot retaliate against an employee for reasons that violate public policy. Public policies are regarded as fundamental and substantial principles of right legal conduct that are supported by constitutional or statutory law. Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890 [66 Cal.Rptr.2d 888, 941 P.2d 1157]. There are four main categories of activities that are protected under common law:
      • Exercising a constitutional or statutory right or privilege, such as exercising your family and medical leave rights.
      • Reporting violation of a statute for public benefit, such as disclosing anti-trust violations
      • Refusing to violate a statute, including refusing to commit a crime on the instructions of your employer
      • Performing a statutory obligation, such as going for jury duty
    • Whistleblower laws: California Labor Code 1102.5 LC protects employees from retaliation for specific protected activities. The law applies to both ultimate employment actions, such as termination, and less subtle actions. The protected activities here include:
      • Reporting suspected criminal activity by their employer
      • Reporting a suspected violation of law or regulation to a supervisor who has the authority to investigate; or
      • Providing information to or testifying before a government body conducting an inquiry into a potential violation by the employer
    • Fair Employment and Housing Act: Under FEHA, employees are protected from retaliation for standing up to employers who harass or discriminate against the employee or their co-workers. This includes protection for:
      • Filing a complaint against discrimination or harassment
      • Opposing acts of harassment or discrimination at work
      • Requesting workplace accommodations for a disability or religious beliefs
      • Testifying or assisting in any proceeding under FEHA
    • Occupational safety and health: An employer may not discharge or retaliate against any employee for:
      • Making a complaint to the California Division of Occupational Safety and Health or any other government agency responsible for workplace safety or health
      • Institute or testify in an occupational safety and health proceeding
      • Exercise any right under occupational safety and health laws or participate in a committee under these laws
      • Refuse to perform work in or under conditions that include violations that would create a real and apparent hazard to workers. Cal. Lab. Code §§ 6310, 6311.
    • False Claims Act: It is illegal for an employer to fire a worker for filing a lawsuit to stop an employer from committing fraud, theft or embezzlement of government funds. These lawsuits are called ‘qui tam’ lawsuits. The protection also extends to worker who report violations of the False Claims Act. Government Code 12652.
  • Workers’ Compensation: No worker can be retaliated against for exercising their workers’ compensation rights. This includes:
    • Filing a workers’ compensation claim; or
    • Testifying in a co-worker’s compensation hearing. Cal. Lab. Code § 132a.

Depending on the circumstances of your case, you may be entitled to protection under one or more of these laws. Our knowledgeable California employment law attorneys can help you understand how the law applies to your unique circumstances.

How to prove retaliation in the workplace?

Although the workplace retaliation laws are clear on what amounts to retaliation, it can often be difficult to show that retaliation has in fact occurred. This is because retaliatory acts can be subtle in many cases, making them harder to detect.

To establish a claim for retaliation, workers are usually required to show that:

  • They participated in a protected activity
  • They suffered an adverse employment action by the employer
  • Participation in the protected activity was a substantial motivating reason for the occurrence of the adverse employment action
  • They suffered harm; and
  • The adverse employment action was a substantial factor in causing the harm. Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116 P.3d 1123].

Once an employee makes a case for retaliation, the employer must respond by showing that there was a legitimate, non-retaliatory reason for the negative employment action.

What if it turns out that your employer did not do anything wrong? It is important to keep in mind that the purpose of the law is to prevent employers from blocking the exercise of employee rights. As a result, it does not matter if the employer was not actually doing anything wrong before a complaint was made. If you genuinely believed you were engaging in a protected activity and you suffered retaliation as a result, you still have a right to compensation. Miller v. Department of Corr. (2005) 36 Cal.4th 446, 473–474 [30 Cal.Rptr.3d 797, 115 P.3d 77].

However, it must have been clear that you intended to and actually were engaged in a specific protected activity. It must not have been vague, general or relating to personal grievances.

How to file a retaliation claim in California?

Finally, there are several ways to file a retaliation claim in California. Most of these depend on the law under which you are claiming relief against retaliation. You may be required to follow separate procedures or approach different agencies. Here are some of the procedures:

  • Common law: For a claim of retaliation in violation of public policy, you are entitled to file a tort lawsuit against your employer. This means you can go straight to court and sue your employer with the aid of a workplace retaliation attorney.
  • Whistleblower retaliation: Victims of whistleblower retaliation under Labor Code 1102.5 LC are required to first notify the California Labor and Workplace Development Agency. After notifying the agency, and also your employer via certified mail, the agency may investigate your complaint. If it chooses not to, you can go ahead to file a lawsuit, within 2 years.
  • FEHA: For retaliation under FEHA, the law requires aggrieved employees to file an initial complaint with the California Department of Fair Employment and Housing (DFEH). Your complaint will be investigated and DFEH will issue a ‘right to sue’ notice to let you file a lawsuit, within the next 1 year.
  • False Claims Act: If you were retaliated against under the False Claims Act, you can go right ahead to file a lawsuit.
  • Occupational safety and health: You are required to file a complaint with the California Division of Labor Standards Enforcement. This must be done within 6 months of the retaliatory action.
  • Workers’ compensation: These complaints are required to be filed with the California Division of Workers’ Compensation, also within 1 year.

Contact Eldessouky Law today

For questions about California workplace retaliation law or to discuss your case confidentially with one of our skilled employment law attorneys, contact us at Eldessouky Law. Call us at 714-409-8991 to schedule a free consultation today.

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