We automatically associate workplace retaliation with being fired, but in reality, there are many other unlawful acts that can constitute retaliation in California. Any of these could form the basis of a successful retaliation claim if they occur because an employee engaged in a “protected activity.”
For example, the California Labor Code includes many laws that prohibit retaliation. If you believe you have been a victim of workplace retaliation, now is the time to seek legal counsel. The clock is ticking as victims must file a complaint within 1 year of the retaliatory act in many cases.
At Allred, Maroko & Goldberg, our attorneys have spent decades protecting California workers from unlawful workplace retaliation. Every day, we continue the tireless work of our founders, Gloria Allred, Michael Maroko & Nathan Goldberg, as campaigners for workers’ rights. In this post, we will examine what constitutes retaliation in California and how our firm can fight for your rights if you have been victimized.
Defining Retaliation Under California Employment Law
Employer retaliation in California law generally refers to the situation in which an employee faces negative consequences because they have engaged in activities that are protected by California law. There are also parallel federal laws that protect employees from retaliation.
Understanding protected activities
Under the California law, the following are examples of protected activities that employees should be able to engage in without fear of employer reprisal:
- Filing claims or complaints with the Labor Commissioner
- Taking time off work for jury duty or to appear as a witness
- Talking about your salary
- Using sick leave to care for family members (specifically permitted under California law)
- Engaging in political activities
- Raising concerns about health and safety
This list is not exhaustive, but it highlights a range of activities that employers sometimes feel are unfavorable to their business, causing them to treat involved employees in a negative manner. Under California law, a retaliatory act is known as an “adverse action.”
New California law strengthens employees’ rights
In October 2023, Governor Gavin Newsom signed Senate Bill (SB) 497 into law. This new statute creates a presumption of retaliation pursuant to Labor Code section 1102.5 if, within 90 days of an employee engaging in a protected activity, the employer takes an adverse action against him or her.
If you believe you have been the victim of workplace retaliation, you or an employment attorney must demonstrate a “prima facie case” of retaliation by proving the following 3 elements:
- You engaged in a protected activity
- Your employer took an adverse action against you
- There was a causal nexus between the two events
The onus is then on your employer to prove there was a non-retaliatory reason for taking the adverse action against you. If you are unsure whether your experience qualifies as retaliation, our employment attorneys are here to help.
Constructive Discharge
Firing an employee is an obvious form of retaliation, but some employers are more subtle. They may make your employment so unbearable that you feel forced to quit. This is known as constructive discharge, and it is just as illegal a form of retaliation as firing an employee outright.
To successfully claim constructive discharge as a form of retaliation in California, you must prove that:
- Your employer knowingly subjected you to working conditions that were so intolerable that a reasonable person in your position would have had no reasonable alternative except to resign;
- That you resigned because of these working conditions;
- That you were harmed as a result.
Many workplaces can be unpleasant, but this may not necessarily qualify as grounds for constructive discharge due to retaliation. If you have questions about whether you were forced to quit, call Allred, Maroko & Goldberg today for answers.
Pay Cuts and Reduction of Benefits
Under California Law, employers generally have the right to reduce their employees’ pay and benefits.
However, it is illegal to reduce an employee’s pay or reduce their hours as a form of retaliation.
If your pay has been unlawfully cut as retaliation for participating in a protected activity, one option is to file a wage claim with the California Labor Commissioner. Alternatively, you can retain an employment attorney to pursue early resolution of your matter or to file a lawsuit against your employer. Either way, talk to an experienced employer attorney first to understand how to give yourself the best chance of making a successful claim.
Demotion or Reassignment
A demotion or unfavorable job reassignment can significantly impact your pay and career advancement opportunities. If your employer demotes you or changes your duties after you engage in a protected activity, such as making a complaint about workplace harassment or wage violations, you may have a viable claim for retaliation.
To prove your demotion was an adverse action resulting from retaliation, you should work with an employment attorney to gather any possible evidence relating to such a claim including:
- Emails
- Text messages
- Performance reviews
- Records of the protected activity you engaged in
- Witness statements from coworkers
Documentary evidence can help present a clear picture of your performance before your demotion. The employment attorneys at Allred, Maroko & Goldberg will review what would be compelling evidence to establish the link between the protected activity you engaged in and your demotion.
Exaggerated Disciplinary Actions
After an employee blows the whistle on discrimination, harassment, or other unsafe or unlawful workplace practices, an employer may attempt to build a paper trail against the employee for alleged “performance issues”. Legitimate discipline is legal, but false or exaggerated claims to justify disciplinary actions in retaliation to an employee engaging in protected activity are not.
Examples of retaliatory discipline could include:
- Falsely claiming your job performance did not meet expectations
- Retroactively documenting performance issues or incidents that did not take place
- Applying stricter standards to you than to other employees
Unscrupulous employers may believe they have created a protective shield for their retaliatory actions. However, an experienced workplace retaliation lawyer can scrutinize their claims, look for inconsistencies, and try to build a strong case to prove retaliation took place.
Isolating the Employee
Sometimes employers may resort to isolation tactics to retaliate against an employee, such as cutting an employee out of collaborative discussions and activities and isolating them. Isolating an employee can have a significant adverse impact on job satisfaction and career opportunities.
Examples of tactical isolation can include:
- Leaving the employee off important emails and meetings
- Assigning him or her away from key projects
- Failing to provide training or workplace advancement opportunities open to other employees
- Exclusion from client interactions
If you experience such exclusion after reporting workplace violations or exercising other workplace rights, you may have a claim of retaliation even if your employer has not yet terminated you.
Filing a Workplace Retaliation Complaint in California
The examples considered above are just a sampling of the many scenarios that could potentially qualify as retaliation under California employment law. When you are at the center of a complex and challenging employment situation, it can be difficult to understand whether you have a case. Talking to a lawyer with Allred, Maroko & Goldberg can clarify whether you have a strong case and how to navigate the claims process.
Filing a CRD complaint
After seeking legal advice, one option may be to file a complaint with the California Civil Rights Department (CRD) for retaliation because you complained of illegal discrimination or harassment in the workplace. The CRD will conduct an investigation. The CRD can decide whether there is “cause” for your claim of retaliation or “no cause.”
Pursuing legal action
You may also wish to file a lawsuit and not wait for the CRD to investigate. If so, you can request a right-to-sue letter and proceed with filing a lawsuit in court. An experienced employment law attorney can advise you whether your case has a strong chance of success.
Understand Your Rights With Allred, Maroko & Goldberg
If you believe you have been a victim of workplace retaliation, now is the time to act. Filing deadlines in California can be complex, so seek legal advice as quickly as possible to improve your chances of proving retaliation and protecting your employment rights.
The experienced legal team at Allred, Maroko & Goldberg is ready to hear your story and show you the way forward. Jointly headed by our founder, Gloria Allred, we courageously follow her vision of setting precedents and recovering compensation.
Discover your rights today by calling 323-746-1853 or completing our confidential contact form to schedule a free consultation.