Los Angeles Workplace Retaliation Lawyer

Illegal workplace retaliation is by far the most common complaint with the Equal Employment Opportunity Commission (EEOC). Unfortunately, because the term “retaliation” is used in everyday language, many people misunderstand the type of retaliation that is protected by the law.

In California, there are various laws that protect employees’ rights in the workplace. Employees should be afforded the comfort of knowing that they can exercise those rights without fear of repercussion or negative consequences. But the reality is that many employers may not like it when employees exercise their rights. That is why the law provides that extra comfort, by expressly making it illegal to retaliate against an employee for exercising certain rights, and a qualified retaliation attorney can help you understand if your situation qualifies.

What Is Unlawful Workplace Retaliation?

Employees are protected from retaliation by the employer. That means if an employee engages in a lawfully protected activity, the employer cannot take any adverse employment action against the employee for having engaged in such activity.

But not everything an employee does is considered a “protected activity”, and not everything an employer does is considered an “adverse employment action”. In other situations, even when an employee has suffered an “adverse employment action”, it does not mean it was because the employee engaged in protected activity.

Protected Activities Under California Employment Law

A protected activity can be thought of participating in conduct that is protected by the law, or opposing an unlawful action.

Under California Labor Code section 1102.5, whistleblowing to a government or law enforcement agency, a superior, or another employee with certain powers, or participating in any investigation, is a protected activity.

Other examples of protected activities include:

• Labor Code section 230: taking time off to serve on a jury, comply with a subpoena or court order to appear in court to testify as a victim of a crime, or as a victim of violence or assault in various circumstances.

• Labor Code section 230.8: eligible parents taking time off to participate in a child’s school activities, take care of child care needs, or school emergencies.

• Labor Code section 232: disclosing his or her wages. Employees have a right to disclose and discuss their wages, and employers cannot require employees to sign a waiver or otherwise restrict this right.

• Labor Code sections 232.5 and 6310: discussing or disclosing information about working conditions, or making a complaint about occupational health and safety (OSHA).

• Labor Code section 246.5: using accrued sick days.

• Labor Code sections 1030-1033: exercising any rights related to lactation needs.

If you’ve faced retaliation after engaging in any of these activities, a workplace retaliation lawyer can guide you through the next steps.

Adverse Employment Actions Under California Employment Law

It is also important to prove that the employee suffered from an adverse employment action after engaging, and because the employee engaged in, protected activity. Employees are familiar with obvious and ultimate actions, such as a termination or demotion. But actions or a course or pattern of conduct that materially and adversely affects the terms, conditions, or privileges of employment are also considered an adverse employment action.

This includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. The conduct has to be more than minor or trivial actions or conduct that does not reasonably do more than anger or upset an employee.

Other examples of adverse employment actions include:

• Refusal to hire
• Failure to promote or refusal to promote
• Sidelining or other loss of opportunity
• Reassignment of tasks or assignments
• Being singled out for extra work
• Shift or location reassignments
• Change or reduction in work hours
• Refusal to pay earned bonuses or commissions
• Negative performance reviews or placement on a performance improvement plan (“PIP”)
• Unjustified discipline, or harsher scrutiny or discipline
• Harassment or bullying

If you believe your employer has taken such actions, consulting with an employment retaliation attorney can help you gather evidence and build a strong case.

How to Prove a Valid Retaliation Claim in California

Employees do not need to conclusively “prove” anything. It is pretty rare that someone who engages in protected activity is immediately fired on the spot.

The burden of proof is only a preponderance of the evidence, meaning more likely than not. That’s the lowest burden of proof in California law.

Temporal link retaliation is a good example. Assume Christine reports sexual harassment to her boss in March. The next month, her boss reassigns her to a different branch, citing staffing issues. These concerns may have played a role in the decision. But Christine’s recent sexual harassment report also appears to be the driving force behind her reassignment. The question to ask, is why the employer chose Christine, over any other employee, to be reassigned due to the staffing issues. The lack of any other legitimate business reasons for choosing Christine suggests that it was more likely than not because of her recent complaint. The claim may be stronger with other evidence, such as how Christine was suddenly treated differently, or her work was suddenly unsatisfactory, between March and April, and how that was never the case before.

This may also be especially true if other evidence of discrimination or unlawful employment practices is also available. For example, as a female, Christine is in a protected class. If Christine was the only female, and there are again no other legitimate business reasons for choosing Christine to relocate, this suggests that the move was maybe not just retaliatory, but discriminatory as well.

Once a plaintiff establishes a prima facie retaliation claim, unless the employer establishes a nonretaliatory or nondiscriminatory reason for the move, the plaintiff is entitled to damages. These damages normally include back pay as well as a reasonable amount of future pay, if reinstatement to the prior position is not an appropriate remedy. Other damages may also be available.

How a Los Angeles Retaliation Attorney Can Help You Seek Justice

Employees are protected from retaliation, but only when they engage in protected activities and suffer an adverse employment action. Because “retaliation” under the law does not mean the same thing as it does in our daily lives, an experienced retaliation attorney helps determine whether the employee has a legally recognized claim for retaliation and ensures that the employee is fully compensated for the violation of their rights.