What is Retaliation?

Retaliation in the employment context arises when an employee engages in some form of "protected activity" and faces poor treatment or termination from his employer. California has provided employees with legal protections that prevent employers from retaliating against employees for engaging in any protected activity. 

Opposing an unlawful practice

When an employee reasonably believes the employer is engaging in unlawful or illegal activity and reports the unlawful activity to those with responsibility, the employee generally engages in protected activity.  For example, if an employee reports to human resources that health and safety laws are being violated, that report would be protected activity. Even if the concerned activity was not in fact unlawful, to retaliate against an employee for seeking guidance is a form of retaliation.

Protected activities include, but are not limited to: reporting harassing conduct, discrimination or retaliation; filing a claim of harassment; providing evidence in any investigation; or intervening to protect others who may have suffered harassing conduct, discrimination or retaliation. Often seen in the construction and contracting fields, protected activities can include safety stops, or forced delays of work on the construction or maintenance site when seeing a safety or OSHA violation. If an employer were to retaliate against an employee for making such a stop, even if they were confused as to the applicable rule, this retaliation would be a violation of California and Federal law. 

Participating in proceedings

It is unlawful for employers to retaliate against employees for supporting other employees in internal or legal proceedings, or to associate or support a Union or other agency or club.  For example, it would be unlawful for an employer to retaliate against an employee who testified that she observed her manager sexually harassing a fellow co-worker. It would be equally unlawful to skip the promotion or raise of a high school teacher who supported the United Teacher's Alliance in fear they would bring the Union into the school. 

Statutory whistleblowing

California labor code section 1102.5 makes it unlawful for an employer to retaliate against an employee for reporting violations of the law.  Such reporting must be made to a government or law enforcement agency, or to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance. If the employee was simply mistaken, and there was no actual violation of the law, it can still be illegal to retaliate against the employee. 

Adverse employment action

It is rare that managers will admit that the reason they took adverse employment action against an employee was because the employee engaged in protected activity.  Generally, the employee must show that the adverse employment action took place after or simultaneously with the protected activity.  Examples of adverse employment actions may include termination, demotion, denial of promotion, reduction in pay, change in schedule, harassment, hostile work environment, isolation, and defamation. Further, adverse employment actions can be subtle, such as not being provided the same training opportunities as your co-workers moving forward. 

If you believe you have been retaliated against by your employer, Contact us for a FREE consultation so we may begin to assist you in seeking justice. 

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