Every employee deserves to work in a secure environment, and should never have to worry about retaliation from their employer. If you have been a victim of retaliation in the workplace, you can take action by contacting our workplace retaliation lawyers today.
What is workplace retaliation?
Workplace retaliation is when your employer takes an adverse employment action against you (such as disciplinary action or termination), in response to your having engaged in protected activity (like complaining about harassment or discrimination, requesting FMLA leave, or requesting reasonable accommodation for a disability).
Other protected activities include complaining about not receiving overtime pay, refusing to participate in illegal activity, and reporting illegal activity to a state or government agency.
California labor law strictly forbids employers from retaliating against an employee who complains about harassment or reports unlawful employer conduct.
Your rights under the law
It is important that employees are fully aware of their rights under California and Federal labor laws. The most important of those laws are:
Whistleblower Legislation, which protects employees who notify authorities of an employer’s illegal or fraudulent conduct. Employers are strictly prohibited from terminating or unfairly treating employees as a result of their pursuit of a whistleblower claim.
Harassment and Discrimination. The Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, and similar laws specify that employers cannot harass or discriminate against employees based on age, disability, race, gender, pregnancy, national origin, religion, sexual orientation, or, more importantly, having filed a claim against one’s employer.
First Amendment Rights. The First Amendment of the US Constitution gives government employees the right of free speech, including the right to report illegal conduct, as well as conduct under political campaigns. Political employees are therefore protected from workplace retaliation in response to exercising those rights.
Federal law protects the rights, and the U.S. Equal Employment Opportunity Commission (EEOC) is the agency charged with protecting employees under these laws. EEOC laws strictly prohibit employers from punishing employees or job applicants for engaging in protected activities.
Federal law also protects whistleblowers who report fraud against the U.S. government. This is known as the False Claims Act. The False Claims Act protects employees against wrongful termination by their employer in retaliation for reporting fraud.
Unfortunately, the reality is that retaliation happens on a regular basis, and most incidents are never reported.
Retaliation case examples
Employees often face several types of retaliation during their careers, and every employer has its own workplace retaliation tactics, including demotion, pay reduction, unfair treatment, and even wrongful termination.
Furthermore, to discourage employees from making complaints, an employer may try to make an example of one employee, letting other employees know that if they engage in similar behavior, they will be disciplined or fired.
One common scenario occurs when an employee takes maternity, paternity, or disability leave. The employer will often come up with a supposedly legitimate reason for firing the employee, usually poor performance or obscure policy violations. This suspicion is called the pretext for discrimination, and it is what must be proved in order to win your retaliation case. As employment attorneys, our job is to prove the employer’s pretext is false, and that the real reason was the employee’s valid request for leave of absence.
Another scenario occurs when an employee complains about being discriminated against based on membership in a protected class, or complains that he or she is entitled to overtime pay. Retaliation is also common after an employee complains about unsafe conditions in the workplace, tries to form a union, or reports workplace sexual harassment.
In each of these examples, the employee may have a valid retaliation case, so long as the protected activity or complaint was close in time to the adverse employment action. The more time separating the two, the harder it becomes to prove the protected activity was a substantial motivating factor in the employer’s adverse action.
Kinds of retaliation
We have helped clients recover the compensation they deserve after suffering these types of workplace retaliation:
- Negative performance reviews
- Denied opportunities for pay raise
- Excessive disciplinary action
- Demotion without a valid reason
- No pay raise for increasingly demanding work
- Exclusion from internal and client meetings
- Pay reductions without a valid reason
- Denial of equal training benefits
- New or unwarranted monitoring
- Unacceptable working conditions
No matter which type of retaliation you have experienced, our attorneys are here to help. In your initial consultation, our expert team will address your questions or concerns to help you fully understand your situation and begin to develop an effective legal strategy. We will carefully guide you through the entire legal process, from start to finish.
Do I have a retaliation claim?
Workplace retaliation claims are based on the employee’s assertion that an employer has illegally retaliated against them in response to a protected action. Employees cannot be terminated by their employer for engaging in any form of protected conduct, including:
- Reporting harassment or discrimination
- Filing a discrimination claim
- Requesting accommodation for a disability
- Claiming workers’ compensation
- Complaining about safety, overtime, or breaks
- Refusing to engage in illegal business practices
- Reporting illegal activity or fraud in the workplace (whistleblowing)
- Being a witness in a case against your employer
It is illegal for employers to terminate or punish an employee for taking part in protected conduct. If your employer has done so, you have the right to file a workplace retaliation claim.
Wrongful Termination Law Group has successfully represented many employees who have been victims of retaliation in the workplace, including workers wrongfully terminated for reporting:
If you have experienced any of the above, you may have a claim. Please contact us to schedule your free consultation.
What actions are protected by retaliation laws?
While most retaliation cases involve termination, all types of retaliation for engaging in all types of protected activity are technically protected. Demotions, pay cuts, and reductions in working hours can be viable examples of retaliation. Often, your employer doesn’t want to fire you for liability reasons, so they instead will cut your hours so much that it is not possible for you to support yourself. This too is a form of retaliation.
What evidence is needed to prove a claim?
The best evidence is in written form. When you make your protected complaint, no matter what it is about, you should complain to HR, in writing. When you complain using email, don’t use your company email account. Instead, use your personal email address, so that you will still have access to the conversation later. Without you having complained, it is very hard to prove that you were retaliated against, because the employer is likely to deny it.
When should I report retaliation, and to whom?
Employees often hesitate to report problems for fear of retaliation. However, the act of reporting those issues is actually an employee’s best protection against employer retaliation. You should report the retaliation as soon as you believe it is happening, and you should have already made the protected complaint before then. Timing is everything. Always keep in mind that you cannot be retaliated against for something which had not yet happened. Wet streets don’t cause rain!
What is the statute of limitations for retaliation?
In California, the statute of limitations is generally either two or three years, but there are some situations which have longer or shorter statutes. If you work for a public employer, the government tort statute can be as few as six months. However, for the most part, wrongful termination in violation of public policy has a two year statute for retaliation.
Depending upon the underlying retaliation, you are often far better off bringing your lawsuit as soon as possible. Unfortunately, retaliation claims based on public policy do not include attorneys’ fees. In retaliation litigation, the real leverage comes from the possibility that your former employer could be forced to pay your legal fees and costs under certain statutes, like the Fair Employment and Housing Act (FEHA), which applies when the retaliation involves a protected class.
California Family Rights Act (CFRA) retaliation and Pregnancy Leave Act retaliation now have a three year statute of limitations.  Similarly, the Family Medical Leave Act (FMLA) allows for up to a three year statute of limitations, but in that case, you must sue in Federal Court, which has procedural rules that are less beneficial to employees than California state court. Despite the three year statute, filing your lawsuit as soon as possible is preferable, if possible. Federal employees, like those who work for the U.S. Postal Service, must sue in Federal Court under federal laws.
 Effective in January 2020, the Statute of Limitations for FEHA discrimination, harassment and retaliation claims has been extended from one to three years, but this change is not retroactive, which means that the offensive conduct must have occurred after January 1, 2019.
 Effective in January 2020, the Statute of Limitations for CFRA interference and retaliation claims has been extended from one to three years, but this change is not retroactive, which means that the offensive conduct must have occurred on or after January 1, 2019.
Damages you can seek
If you are wrongfully terminated as a result of illegal retaliation, you are entitled to the lost wages that you would have otherwise earned, in addition to future wages, and damages for past and future emotional distress. In some cases, you may be entitled to punitive damages. Lastly, some types of retaliation have statutes requiring the employer to pay for your legal expenses if you win your case.
Will I need to file a lawsuit?
Not necessarily. It is possible to serve a demand letter on the employer, and go through an informal negotiation process, or a pre-litigation mediation, in order to resolve these sorts of claims. However, in order to obtain any sizable monetary recovery, a lawsuit may be required.
Employers often require employees to sign arbitration agreements, which prevent a lawsuit from taking place. In that case, you need to file a demand for arbitration, which is basically the same thing as a lawsuit, just not in court. Arbitration is a less desirable course of action for employees (which is why employers have their employees sign these agreements).
Sometimes we are able to defeat an arbitration agreement, when, for example, it contains unfair or illegal terms. In that event, we are able to pursue the matter in court, and have your lawsuit tried in front of a jury. A new law, which takes effect in January 2020, prevents employers from firing employees who refuse to sign arbitration agreements. This law does not, however, affect arbitration agreements already in effect.
Will I need to go to court?
Going to court gives you the best opportunity for success and the highest potential financial recovery. Over 90% of cases settle before trial or arbitration, without ever going to court. Settlements are compromises, meaning you might not receive as much compensation as with a trial or arbitration, and often require confidentiality. However, you are guaranteed the result that you agree to. With a trial, there is always a chance you might not win the case. You should also be aware that new tax laws prevent the parties from deducting the costs involved in the settlement of sexual harassment complaints if the settlement agreement includes a confidentiality clause.
Should I keep my job?
Typically, retaliation cases are as a result of having been fired for engaging in a protected activity. If you are retaliated against by virtue of a demotion, a pay cut, or a cut in hours, you will have to decide whether the adverse action was so drastic that no reasonable person would continue to work under those circumstances. If you cannot keep your job, you have an obligation to look for suitable replacement employment similar to the job that you were terminated from, and to document these efforts during your job search.
Do I have a strong case?
The most important factors are the timing of the retaliation and the written documentation available. In the strongest retaliation cases, the employer’s retaliatory act takes place shortly after the protected activity, usually within a month. The closer in time the retaliatory act is to the protected activity, the better for the employee. Equally important are documentation of a timely complaint, and the lack of a sufficient response by the employer to stop the retaliation from occurring.
There are a number of different protected activities that an employee can participate in, and sometimes the employee doesn’t even know or remember that they have engaged in those protected activities. It is always best to call an employment lawyer and go over the activities that preceded your termination to determine whether illegal retaliation might, in fact, be the cause.
We represent employees. Period.
Our firm only represents employees. We are never on the employer’s side. We review all facts before we file a case, and we make sure that we are filing a case against the employer which has merit.
When you find yourself caught up in workplace retaliation, you will be best served by an experienced team of lawyers with a deep understanding of both sides of the case. Wrongful Termination Law Group representing clients in all types of employment law cases, including retaliatory termination. To discuss your case, contact us to set up your free case evaluation today.