One of the most common employment and wrongful termination related claims filed by employees in California is a claim for workplace retaliation. But how do you know if you have a substantial case against your employer for retaliation? Knowing the legal definition and intricacies related to retaliation may help you determine if you have a legitimate claim.
What Is Retaliation?
First, retaliation occurs when an employer punishes, or imposes adverse employment action against an employee for engaging in “legally protected” activity. Here are several types of “legally protected” activities for the purposes of anti-retaliation laws in California:
- Civil rights protected activities such as discrimination or harassment complaints
- Disability or medical related protected activities, such as filing a workers compensation claim, requesting FMLA or CFRA leave, or requesting reasonable accommodations
- Safety related protected activities, such as complaining about an unsafe workplace, violations of safety codes, or non-compliance with OSHA laws
- Labor Code related activities such as complaints about not receiving overtime pay, complaints about being misclassified as an independent contractor, not receiving proper meal and rest breaks, or engaging in whistleblower actions
Second, retaliation does not always result in termination. Some of the more common examples of things that qualify as “adverse employment action” include:
- Negative evaluations
- Decrease in pay
- Change in job or shift assignment
- Job location transfer
- Hostile behavior or attitude
- Decrease in benefits
Third, workplace retaliation can include any negative job action or “adverse employment action” listed above, however, retaliation can also be more subtle. Sometimes it's clear that an employer's action is negative, as is the case when an employee is fired or terminated. But sometimes it's not so clear. And according to the U.S. Supreme Court, circumstances of the situation must be considered. For example, if you complain about your supervisor's harassing conduct, his attitude and demeanor may change. But if the change means he acts more professionally towards you, that isn't retaliation even if he isn't as friendly as he once was. Only changes that have an adverse effect on your employment are retaliatory.
On the other hand, if something clearly negative happens shortly after you make a complaint — like firing or demotion — you'll have good reason to be suspicious. And remember, not every retaliatory act is obvious or necessarily means your job is threatened. It may come in the form of an unexpected and unfair poor performance review, the boss micromanaging everything you do, or sudden exclusion from staff meetings on a project you've been working on.
As long as the employer's adverse action would deter a reasonable person in the situation from making a complaint, it constitutes illegal retaliation.
An Experienced Team of Employment Lawyers Can Help
Both Title VII of the federal Civil Rights Act of 1964 and the California Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights and permit recovery of past lost wages and benefits, future wage loss, emotional distress damages, attorney fees and possibly punitive damages, if a violation has been found.
Before a lawsuit can be filed against an employer for harassment, discrimination, or retaliation, an employee must file a complaint with either the federal or state authority charged with investigating such complaints (click here to visit our Retaliation FAQs). If you believe you have taken all the necessary steps to report and are still unsatisfied with the result here in California, you may need to seek legal counsel about the feasibility of filing a lawsuit.