Retaliation

What Is Retaliation?

Retaliation occurs when an employer takes adverse action against an employee because the employee engaged in protected activity. In California, retaliation is illegal under multiple state and federal laws, making it one of the most common bases for employment lawsuits.

Protected activities include reporting workplace safety violations, filing wage claims, taking protected leave, participating in investigations, or exercising any right guaranteed under California labor law. Employers who retaliate face significant legal liability, including back pay, compensatory damages, and civil penalties.

California Anti-Retaliation Protections

Key California Laws Prohibiting Retaliation

California provides extensive anti-retaliation protections through multiple statutes:

Law	Protection Provided
Labor Code § 98.6	Filing wage complaints or testifying about violations
Labor Code § 1102.5	Whistleblower disclosures to government agencies
Labor Code § 6310	Workplace safety complaints (Cal/OSHA)
Labor Code § 230	Jury duty, court appearances, crime victim leave
Labor Code § 230.1	Domestic violence, sexual assault, stalking leave
CFRA	Taking family and medical leave
FEHA	Reporting discrimination or harassment
Labor Code § 1197.5	Inquiring about or discussing wages

What Constitutes Protected Activity?

Protected activities that shield employees from retaliation include:

Internal Complaints

• Reporting wage and hour violations to a supervisor
• Complaining about unsafe working conditions
• Raising concerns about discrimination or harassment
• Reporting suspected illegal activity by the employer

External Reporting

• Filing claims with the Labor Commissioner
• Reporting to OSHA or Cal/OSHA
• Contacting law enforcement about workplace crimes
• Submitting complaints to regulatory agencies

Participation in Investigations

• Providing statements to investigators
• Testifying in administrative hearings
• Cooperating with government audits
• Serving as a witness in legal proceedings

Exercising Legal Rights

• Taking meal breaks and rest breaks
• Requesting overtime pay owed
• Using protected leave (CFRA, sick leave, jury duty)
• Discussing wages with coworkers

What Constitutes Adverse Action?

Adverse actions are employment decisions that would deter a reasonable employee from engaging in protected activity.

Common Forms of Retaliation

Category	Examples
Termination	Firing, forced resignation, constructive discharge
Demotion	Reduction in title, responsibilities, or authority
Pay Reduction	Wage cuts, reduced hours, loss of bonuses
Schedule Changes	Undesirable shifts, reduced hours, inconsistent scheduling
Harassment	Increased scrutiny, unwarranted discipline, hostile treatment
Exclusion	Removal from projects, meetings, or advancement opportunities
Transfer	Reassignment to less desirable position or location
Negative References	Providing poor references to prospective employers

Subtle Forms of Retaliation

Retaliation is not always obvious. More subtle forms include:

• Increased documentation of minor issues
• Exclusion from important communications
• Reassignment of key responsibilities
• Denial of previously approved requests
• Change in supervisor attitude or treatment
• Elimination of the employee's position
• Delayed performance reviews or raises

Proving Retaliation Claims

Elements of a Retaliation Claim

To establish retaliation, an employee must generally prove:

1. Protected Activity: The employee engaged in protected conduct
2. Employer Knowledge: The employer knew about the protected activity
3. Adverse Action: The employer took a materially adverse action
4. Causation: A causal connection between the protected activity and adverse action

Evidence of Retaliation

Common evidence used to prove retaliation:

Evidence Type	Examples
Timing	Adverse action shortly after protected activity
Inconsistent Treatment	Different treatment than similarly situated employees
Departure from Policy	Failure to follow normal procedures
Direct Evidence	Statements revealing retaliatory motive
Pretextual Reasons	False or shifting explanations for adverse action
Pattern of Conduct	History of retaliation against other employees

The Burden-Shifting Framework

California retaliation cases often follow this framework:

1. Employee's Initial Burden: Establish a prima facie case of retaliation
2. Employer's Burden: Articulate a legitimate, non-retaliatory reason for the action
3. Employee's Rebuttal: Show the employer's reason is pretextual (a cover-up)

California-Specific Protections

Labor Code Section 98.6

This law prohibits retaliation against employees who:

• File complaints with the Labor Commissioner
• Testify or plan to testify in proceedings
• Exercise rights under the Labor Code
• Report violations to authorities

Key Feature: Creates a rebuttable presumption of retaliation if adverse action occurs within 90 days of protected activity.

Labor Code Section 1102.5 (Whistleblower Protection)

California's primary whistleblower protection law prohibits retaliation for:

• Disclosing information to government agencies
• Reporting suspected violations of law
• Refusing to participate in illegal activity
• Providing information in investigations

Key Feature: Covers disclosures to internal supervisors, not just external agencies.

Labor Code Section 6310 (Safety Complaints)

Protects employees who:

• File workplace safety complaints with Cal/OSHA
• Institute safety-related proceedings
• Testify about workplace safety
• Exercise rights under Cal/OSHA

Key Feature: Employers cannot require employees to sign waivers of their right to report unsafe conditions.

Penalties for Retaliation

Employee Remedies

Employees who prove retaliation may recover:

Remedy	Description
Reinstatement	Return to former position
Back Pay	Lost wages and benefits from termination to judgment
Front Pay	Future lost earnings if reinstatement is impractical
Compensatory Damages	Emotional distress, reputational harm
Punitive Damages	Additional damages for malicious or oppressive conduct
Attorney's Fees	Costs of bringing the lawsuit
Interest	On all unpaid amounts

Civil Penalties

Under Labor Code § 98.6:

• First Violation: Up to $10,000 per employee per violation
• Pattern of Violations: Additional penalties may apply
• PAGA Penalties: $100-$200 per pay period per employee

Criminal Penalties

In severe cases:

• Misdemeanor charges for willful violations
• Fines up to $10,000
• Potential imprisonment

Prevention Strategies for Employers

Creating an Anti-Retaliation Culture

1. Written Policy: Maintain clear anti-retaliation policies in employee handbooks
2. Training: Train supervisors to recognize and avoid retaliatory conduct
3. Reporting Channels: Establish confidential reporting mechanisms
4. Prompt Investigation: Investigate all complaints thoroughly and fairly
5. Documentation: Maintain contemporaneous records of all employment decisions

Documentation Best Practices

When taking adverse action against employees who have engaged in protected activity:

Do	Don't
Document legitimate business reasons in real-time	Wait until after a complaint to start documenting
Follow established policies and procedures	Deviate from normal practices
Treat the employee consistently with others	Single out the employee for different treatment
Consult HR and legal counsel before acting	Make hasty decisions without review
Keep performance issues separate from complaints	Conflate conduct with protected activity

Separation of Decision-Making

When an employee has engaged in protected activity:

1. Insulate Decision-Makers: Those aware of protected activity should not make adverse employment decisions
2. Independent Review: Have HR or legal review any proposed adverse action
3. Document Independently: Ensure reasons for action are well-documented before the protected activity
4. Consistent Application: Apply policies uniformly across all employees

Common Employer Mistakes

Timing Issues

• Taking adverse action immediately after protected activity
• Failing to document performance issues before complaints arise
• Accelerating discipline after employee files complaint

Inconsistent Treatment

• Applying different standards to the complaining employee
• Ignoring similar conduct by other employees
• Departing from established progressive discipline policies

Poor Documentation

• Creating documentation only after a complaint
• Documenting more thoroughly than for other employees
• Inconsistent or changing explanations for actions

Communication Failures

• Making statements that reveal retaliatory motive
• Discussing the complaint with uninvolved parties
• Failing to preserve relevant documents

Scheduling and Workforce Management Considerations

Preventing Schedule-Based Retaliation

Employers using workforce management software should ensure:

1. Objective Scheduling: Use automated, rule-based scheduling to prevent retaliatory schedule changes
2. Audit Trails: Maintain records showing legitimate business reasons for schedule decisions
3. Consistent Application: Apply scheduling policies uniformly across all employees
4. Manager Training: Train supervisors not to use scheduling as punishment

Best Practices for Schedule Changes

When modifying an employee's schedule after they engage in protected activity:

• Document the business necessity for any changes
• Ensure similar changes are made for other employees when warranted
• Avoid making changes that disproportionately burden the complaining employee
• Have HR review proposed schedule changes for complaining employees