Workplace Retaliation

If you've faced retaliation for standing up for your rights, reporting misconduct, or engaging in protected activities, you don't have to suffer in silence.

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Retaliation is the claim people least expect to have and most often do.

Here is why. You can lose the underlying complaint and still win the retaliation case. They are separate claims, and the second one does not depend on the first one being right.

WHAT COUNTS AS PROTECTED ACTIVITY

California law prohibits retaliation against a person who has opposed practices it forbids.

Opposition protected from retaliation may include:

Complaints or protests to an employer. But complaints about personal grievances, or vague or conclusory remarks that fail to put the employer on notice as to what conduct it should investigate, will not suffice.

Meetings to discuss unlawful employment policies.

Refusal to participate in unlawful employment practices.

Threatening to file a charge of employment discrimination.

Note the limit in the first one. A general complaint that your boss is difficult is not protected. A complaint that identifies conduct the employer should investigate is. How you said it matters.

THE ADVERSE ACTION HAS TO MATTER

This is where California and federal law part company, and it is worth knowing which one you are under.

The California Supreme Court has held that to succeed on a theory of unlawful retaliation, an employee must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply an adverse action that would reasonably deter an employee from engaging in the protected activity.

The federal standard is a deterrence test. California uses a materiality test. The analysis differs, but the result is often the same: conduct that fails one test frequently fails the other.

What has been held to qualify

Denying advancement. When an employer retaliates by denying prospects for advancement or promotions to employees because they filed discrimination claims, the employer has engaged in an adverse employment action in violation of California law.

Reassignment, even within your job description. Reassignment of job duties can constitute retaliatory discrimination even when both former and present duties fall within the same job description, where the new duties are more arduous and the old position was objectively considered a better job.

Suspension without pay, even if reversed. A suspension without pay can constitute retaliation even though the employer ultimately reinstated the employee with backpay, since it could well act as a deterrent to a reasonable employee.

That last one surprises people. Getting made whole later does not erase what happened.

TIMING CUTS BOTH WAYS

A long period between an employer's adverse employment action and the employee's earlier protected activity may lead to the inference that the two events are not causally connected.

But if between those events the employer engages in a pattern of conduct consistent with a retaliatory intent, there may be a causal connection.

So a gap is not fatal. What fills the gap is the question, and it is why the small things you did not think were worth mentioning often matter.

WHISTLEBLOWER RETALIATION IS A SEPARATE CLAIM

If you reported something rather than complained about how you were treated, you may have a claim under a different statute.

An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency when the employee has reasonable cause to believe the information discloses a violation of a state or federal statute, or noncompliance with a local, state, or federal rule or regulation. That protection applies regardless of whether disclosing the information is part of your job duties.

You are also protected for refusing to participate in an activity that would result in a violation of a statute, rule, or regulation.

And you do not have to cite the statute. Where your report states facts from which supervisors should reasonably infer a violation, failing to name the specific law is not a defense.

WHAT TO DO NOW

Fix the date of your complaint. The single most important fact in a retaliation case is when you complained and to whom. Find the email, the text, the HR ticket number.

Write down what changed afterward. Schedule, duties, reviews, tone, who stopped inviting you to things.

Do not stop documenting because it seems petty. Patterns are built from small things.

Call.

WHAT HAPPENS WHEN YOU CALL

1. A conversation, free, confidential, and no obligation. You tell us what happened. We ask questions.

2. We tell you honestly whether you have a case, including when you don't. We would rather say so on the first call than take a case that isn't there.

3. If we take it, we handle the filings and the deadlines. You go back to your life.

We don't get paid unless we recover for you. We advance all case costs and are reimbursed from the recovery. If there's no recovery, you owe nothing.

Call (818) 578-4969 for a free, confidential consultation.

CALL (818) 578-4969