Workplace retaliation occurs when a California employer takes an adverse employment action against an employee for engaging in a protected activity.

Under California and federal law, “adverse employment action” means the employer has changed the circumstances of the employee’s work to make his or her job difficult but the employee has not been terminated.

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If an employee is terminated for engaging in protected activity, the employee may have a claim for wrongful termination.

“Protected activity” generally includes an employee’s right to speak up against harassment, report legal violations, request accommodations in the workplace, or, in certain circumstances, report the employer’s misappropriation or embezzlement of government finds.

California Has Strong Anti-Retaliation Laws, But Retaliation Can Be Hard to Recognize

California’s whistleblower laws protect workers from termination as well as retaliation for reporting activity they reasonably believe is illegal. These laws safeguard the jobs of whistleblowers even if the whistleblowers are wrong, and their employers did not do anything illegal. The purpose of these laws is to encourage employees to report workplace violations and wrongdoing without fear of losing a job or being punished.

Employers in California may not retaliate against employees who engage in a number of protected behaviors, such as:

  • report violations of law;
  • oppose, complain about or participate in an investigation of workplace harassment or discrimination;
  • request accommodations for a disability or religious belief; or
  • file or assist in a qui tam lawsuit (suit that rewards whistleblowers in successful cases where government recovers funds).

An employee might recognize a potential retaliation claim based on the employer’s actions: a person who is terminated for engaging in protected activity has a stronger case of wrongful termination, although there might also be a claim for retaliation if the employer engaged in a pattern of behavior before ultimately firing the employee. A person who is simply demoted, or put on a different work assignment, may or may not have a claim for workplace retaliation.

The facts supporting a retaliation claim are subtler and can be harder to prove than those supporting a termination claim. Key forms of retaliation can include:

  • Changes in job performance evaluation, such as if the employee begins receiving negative performance reviews when earlier performance reviews were positive;
  • The employee is given more work to do for no apparent reason;
  • The employee is excluded from meetings or correspondence, and these actions make it difficult for the employee to perform his or her job well;
  • The employee is denied some positive job progression, such as a promotion or raise that the employee believes he or she deserves;
  • The employee is assigned less desirable times or duties for work shifts; or
  • The employee is subject to disciplinary action on false or inadequate grounds.

Whistleblower Statutes Have Different Requirements

If an employee suspects retaliation because he or she is a whistleblower, talk with an attorney. Under the Labor Code, as a first step, he or she will probably recommend the employee notify California’s Labor & Workforce Development Agency. This complaint may be completed online and is also mailed to the employer. This state agency may decide to investigate the complaint, but if it does not, it will notify the employee within a certain number of days and send a “right to sue” letter. With this letter, the employee can then proceed with a suit in superior court.

Another type of anti-retaliation statute protects those who act as whistleblowers on wrongdoing. A qui tam lawsuit is most common for those employers who work on government contracts. The California False Claims Act allows an employee to bring a claim against the employer directly. The False Claims Act provides two types of protections. First, it gives employees the right to bring a qui tam suit against an employer who is committing fraud, theft, or embezzlement of government funds. Second, it provides whistleblower protection if an employee reports or tries to stop theft of government funds by their employer. For this type of suit, no “right to sue” letter is needed.

Damages for Emotional Distress and Lost Wages

Unlike wrongful termination cases, where damages to an employee who brings suit would be measured by the value of lost pay and benefits, damages in retaliation cases will be based primarily on three types of monetary losses.

First, an employee might be able to recover damages for emotional distress due to the unfair treatment at work. These emotional damages could include compensation for physical pain caused by the retaliation, loss of enjoyment of life, and/or depression and anxiety.

Second, there might be damages for harm done to an employee’s professional reputation and career, including demotion, removing certain duties, denying professional development or work opportunities, or being denied a promotion. This will depend on the employee’s job duties, pay, and job title.

Third, there may be lost wages if the employee is promoted to a work schedule where he or she works less, or the employee loses out on opportunities the employee previously had to earn a consistent amount of income, such as sales commissions or access to certain accounts.

Contact an Experienced Employment Lawyer

Retaliation can be hard to prove, but with the help of an experienced employment lawyer, you may be able to do so and recover financial compensation for your injuries. Contact our employment attorneys for a free consultation.

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