Updated: Nov 14, 2022
Learn The Factors That Showing Signs of Retaliation And How To File Workplace Retaliation Claims in California
Under both state and federal law, employees and workers have various rights. This post will discuss how you can report and sue your employer if they breach such rights.
Furthermore, if you see a coworker's rights being violated, you have the right to report the infraction and take part in an investigation into the infringements.
However, many employees fear retaliation if they assert their rights at work. What happens if you're fired? What if you're demoted to an inhumane or low-paying job? These and other worries are frequently at the root of an employee's unwillingness to speak up for what is right.
So, if you're afraid of reporting workplace issues or have been retaliated against for doing so, it's time to talk to a Los Angeles Employment Lawyer. An expert employment law attorney can assist you in sorting through the facts of your case, standing firm, and pursuing the justice you deserve.
What Is Protected Activity, And How Does It Work?
Before having a meaningful conversation about retaliation, we must first clarify what we mean by a "protected activity" in the workplace.
Protected activity, in general, refers to legal actions that an employee can take in reaction to illegal or unethical workplace conditions. In addition, various state and federal equal opportunity employment laws describe what constitutes unlawful discrimination, harassment, and other workplace activities.
The right to be free of discrimination is based on your protected attributes. Here's a list of workplace discrimination that is considered illegal in California:
These rules also protect people from sexual harassment and create fundamental ethical and safety guidelines in line with government policy.
Employees have the right to file and push a complaint if they are subjected to discrimination or harassment at work. A California Employment Attorney can advise you on whether you should submit your complaint with the Equal Employment Opportunity Commission at the federal level or with the FEHA at the state level.
In either case, the law bans your employer from retaliating against you after you file a complaint alleging illegal action.
How Do You Show Proof Of Retaliation?
For a successful retaliation claim in California, you must be able to prove three elements:
You participated in a protected action
Your employer retaliated against you as a result of your actions
The retaliatory action taken by your employer was in response to the protected activity
Participating in protected action entails asserting your or your coworker's rights. This usually indicates you've reported illegal discrimination or some other type of criminal activity.
It does, however, include taking part in an investigation into claims made by coworkers. So, for example, if a coworker files a lawsuit alleging discrimination or harassment, and you testify against your employer, the law shields you against retaliation for your role in the case.
Also, note that for as long as your reported your employer fully believing that illegal activity is taking place, you still cannot be punished or retaliated against even when it is revealed that you were wrong. As long as you have reason to believe that your employer is violating worker and workplace protection laws, you shouldn't hesitate to approach the appropriate agencies to make the report.
What's the Difference Between a Retaliation Case, a Wrongful Termination Case, and a Whistleblower Case?
From the perspective of a non-lawyer, these three can often get mixed up with each other. There are, however, distinct features to each of them.
Here's a quick rundown of the distinctions:
A wrongful Termination is a form of retaliation.
Whistleblower Retaliation targets the "whistleblower" or the employee who reported their employers to the agency, exposing the company's unlawful actions.
As stated previously, retaliation often entails firing an employee for speaking out against discrimination, harassment, or patient mistreatment.
Wrongful termination can have a wide range of consequences. A wrongful termination case involves a dismissal due to a violation of "public policy." This could include being fired for complaining about dangerous working conditions or coworker threats of violence. The retaliation rules in California would not apply to either of these situations.
A case involving a whistleblower is also unique. A whistleblower lawsuit usually includes a specific statute, such as Labor Code 1102.5 (refusing to violate the law or reporting a violation of the law) or Health & Safety Code 1278.5 (refusing to violate the law or reporting a breach of the law). While also a form of retaliation, you can file a whole separate case for being a whistleblower.
What Are Examples Of Retaliatory Actions?
An employer might retaliate against their employee or worker for "blowing the whistle" on illegal workplace behavior in various ways. Retaliation can be defined as any action taken by an employer that has a negative impact on an employee.
This includes being on the receiving end of the following retaliatory employment decisions:
Getting closely monitored at work
Getting rebuked or scolded for no or unjust reason
Work performance is negatively assessed without justification
Transferred or reassigned to a less-desirable position, location, or department
New and unfavorable work assignments have been assigned
Getting ridiculed in private or in front of your coworkers
As you can see, an employer might respond in various ways. However, demonstrating that a given act or group of actions was retaliatory might be difficult.
To examine your employer's motivations, you'll need to get into their head to some extent. And, while proving someone's intent can be challenging, your Los Angeles Employment Lawyer will look for specific patterns of behavior to determine a motive.
Is There A Motive?
Retaliation doesn't come from anywhere. While it's not impossible for your boss to just lash out at you out of the blue, retaliation often closely follows having reported your employer or testifying to an employment claim investigation.
Frequently, retaliation is how an employer reacts in certain situations. As employers, they're probably already aware of why the act is illegal, yet they choose to react that way anyway.
Here are several red flags that your boss is retaliating against you:
1. Check For The Timing
There's a significant probability you've been the victim of retaliation if you file a lawsuit against your company and soon after discover that they're treating you differently.
In general, the closer these two occurrences occur in time, the tighter the association and the more compelling your retaliation case becomes. This is why you're advised to keep a Los Angeles Employment Lawyer before filing your claims to relevant agencies.
2. Your Employers' Actions Cannot Be Legally Justified
You'll understandably demand an explanation if your employer or supervisor takes disciplinary action against you. But, unfortunately, if your employer's answer sounds implausible or easily debunked, they may be concealing retaliatory behavior.
Similarly, you are most likely being retaliated against if you hear contradicting explanations from different supervisors or if the reasons keep changing. As a result, always request an explanation.
If possible, obtain it in writing whenever a supervisor gives you a contradictory answer. If they refuse to put it in writing, take careful notes. This can help you and your Los Angeles Employment Lawyer prove your case later.
3. Unprompted Or Sudden Changes At Work
Essentially, if your employer's attitude and treatment of you abruptly and without cause change, it can be used as evidence of motive. This is especially true when no other employees are affected in the same way, and there is no drop in productivity or job performance as a pretext.
Acts of retaliation—like demotions, terminations, and hostile work environments—are often very abrupt and seemingly spontaneous. This is why most employees hesitate to file claims even when they have enough grounds too.
However, you shouldn't let that stop or intimidate you from doing so. Remember, you're the one protected by California Employment Laws, so if you get punished for exercising those rights, you can serve them with an additional retaliation claim.
What Should I Do If I Retaliated Against?
You have many legal options if you believe your boss or employer has retaliated against you for exercising a legally protected right. Examples of such are as follows:
In general, if you have an open lawsuit or government investigation alleging your employer's infringement of your rights, you can add a retaliation claim to that case or inquiry.
You can request that a retaliation claim be added to any existing complaints that your employer has discriminated against, harassed, or failed to pay you the minimum wage or overtime.
You can even file a new, independent retaliation complaint against your employer if no litigation or government investigation has already begun.
Depending on the facts of your case, different remedies may be available to you if your boss or employer is found to have retaliated against you in violation of federal or state law.
For example, you could be compensated for any wages lost due to the retaliation (e.g., if you were demoted, fired, or cut your hours). In addition, you might be reinstated to your previous employment if your employer took adverse action against you by firing you.
Furthermore, all references to the adverse action may be removed from your personnel file, a notice to all employees may be placed in the workplace, or the employer may be forced to take steps to ensure that it does not retaliate in the future.
What a California Employment Attorney Looks for in a Retaliation Claim?
If you suspect you've been the victim of retaliation and want to speak with a Los Angeles Employment Lawyer, it's a good idea to have a short summary of your story ready and any evidence to back it up. Of course, you don't have to bring every piece of evidence you've gathered to your consultation, but you should have something to show the attorney that your claim has legs.
You want to grab the attorney's attention and persuade them that your claim can be turned into a successful case.
What Evidence Is Important in a California Retaliation Case?
Evidence will play a vital role in the outcome of your claim, whether you're looking for an Employment Lawyer in Los Angeles to handle your case or that attorney is battling yours in court.
Here are a few things to consider when planning your gathering:
Photos. If you have any video and photo evidence to show your attorney, bring them out. Keep a record of any nasty behavior or unfavorable treatment you've gotten. Although retaliatory actions can be subtle, capturing them on camera may help you show your lawyer the severity of your current conditions. (However, you should speak with an attorney before getting any audio or video recordings. In California, all parties to a discussion must consent to be recorded before it can be done. Any evidence obtained in violation of this regulation could be ruled inadmissible.)
Digital Correspondences. Keep track of any emails, conversations, or messages that appear to be harassing, discriminatory, or retaliatory. Take screenshots of the chat rooms and keep all of your emails in one location for easy access.
Employment Documents Like Pay Stubs And Written Notices. These documents may prove that your company fired you without cause, demoted you, or threatened you with punishment or reprisal. In any case, these can contribute to a hostile work environment, making it harder for you to carry out your work responsibilities.
Medical Files. You can display declining health indicators if you're overworked or experiencing exorbitant distress due to retaliatory behavior. In California, you can sue for non-economic damages, so don't be afraid to add them as proof of the retaliation's repercussions.
That said, if you feel like you have too little evidence to show your Employment Lawyer in Los Angeles, still don't hesitate to set up an appointment with them. Good lawyers will do their own separate investigations from what their clients and assigned agencies are already doing. If there are documents and other pieces of proof you don't have access to, your legal counsel might have a way to retrieve them.
Additionally, it's generally a good idea to consult a California Employment Attorney before coming to agencies with your evidence. You don't know if the proof you have—like illegally recorded videos—will get you in trouble in the end.
How Do You Win a Retaliation Claim?
Like most legal cases, retaliation claims can be a long and arduous process. It takes a lot of time and evidence to make a successful claim. However, as long as you have an experienced and dedicated Employment Lawyer in Los Angeles at your side, your case might go smoothly.
When manage to prove the following, retaliation lawsuits can be won:
The employee was subjected to or witnessed unlawful harassment or discrimination.
The employee was participating in a legally protected activity.
The employer took disciplinary action against the employee for doing so.
Because of this retaliatory behavior, the employee suffered some sort of harm.
As mentioned earlier, the protections also operate in good faith actions. So even if you reported the wrong thing, it makes no difference whether or not there was actual discrimination or harassment. What usually holds water is that an employee observed or experienced something they thought was improper, reported it in good faith, and was retaliated against for doing so.
This is why, even if it doesn't turn out to be the case, a California Employment Lawyer will want to see evidence that you believed in good faith that what you saw was illegal.
How Do You File A Retaliation Claim In California?
There are a lot of state and federal employee protections, which means you have different places to report your case.
DLSE or The Labor Commissioner.
You can file a retaliation claim with the California Division of Labor Standards Enforcement (DLSE, or "Labor Commissioner"). If your employer has retaliated against you for making any form of inquiry or complaint regarding whether you have been paid your rightful wages.
For workers who cannot afford a private California Employment Lawyer, the Labor Commissioner's approach is typically more convenient. If you decide to register a complaint with DLSE, you must do so within 180 days (6 months) of the retaliatory act.
Within sixty days of receiving your complaint, the DLSE will investigate and make a decision. If the DLSE determines that your employer has unlawfully retaliated against you, the employer's business license may be suspended and/or a fine imposed.
EEOC and DFEH.
Suppose you or others were mistreated at work because of their age, race, sex, national origin, gender identity, color, religion, disability, military/veteran status, or pregnancy status. In that case, you may file a retaliation complaint with either the Equal Employment Opportunity Commission or the Equal Employment Opportunity Commission.
You could file a retaliation claim with DFEH if the discrimination was based on sexual orientation, marital status, or other factors. If you want to file a complaint with the EEOC, you have 300 days from the date of the retaliation to do so.
However, if you're filing with the DFEH, you only have one year to do so.
You can also file a claim with the Federal Office of Safety and Health Administration ("OSHA") if you suffered retaliation for complaining or exposing health or safety issues at work. You can also contact the local OSHA Regional office by phone or by letter.
In general, you have 30 days from the retaliatory actions of your employer to submit a claim with OSHA. However, depending on the OSHA violation you report, this time limit could be extended. Visit OSHA's Whistleblower Protections website for additional information.
If you were retaliated against after filing a health or safety complaint with California's Office of Safety and Health Administration ("Cal/OSHA"), you may file a claim with the DLSE. If you decide to register a complaint with DLSE, you must do so within 180 days (6 months) of the retaliatory act.
If you were fired after filing a workers' compensation claim, you have the right to file a retaliation claim with the California Workers' Compensation Appeals Board (WCAB).
If you choose to submit a complaint with the WCAB, you must do so within one year of the retaliatory act.
What Can You Get From A Successful Retaliation Claim?
Not only will a successful claim get your job back (if you want it), but you will also receive many financial benefits. These monetary damages are a way to make up for the losses and difficulties you went through for being retaliated against.
The possible monetary compensation you can get are as follows:
Your Financial Losses. If you win your case in court, you may be able to receive economic damages, which are the wages you would have earned if you hadn't been fired. For example, if you were earning a specific income per year and were dismissed because you spoke out against sexual harassment, you may be able to recover the money you would have made if you hadn't been fired.
Your Emotional Distress. This includes the pain and suffering incurred due to the unjustified reprisal. Depression and mental pain are two examples of emotional distress damages. Sleeplessness, excessive sobbing, stress, diarrhea, and a lack of enjoyment of life are common complaints. You must be able to describe the damages to prove them. Therefore, it is highly beneficial if you see a therapist and get your symptoms documented.
Attorney/Lawyer's Fees. You may be able to collect your California Employment Attorney's expenses in some retaliation cases. This is a big hammer and a big incentive for defendants to settle these cases.
Punitive Damages To Teach Employers A Lesson. You must establish that your employer acted with oppression, fraud, or malice to win punitive damages in a retaliation case. This is particularly difficult to achieve. Even if you win, Supreme Court decisions limit the amount of money you can spend on them.
Getting these compensations is dependent on the evidence you have and the ability of your Employment Lawyer in Los Angeles to argue for your case. This is especially crucial for "intangible" losses like emotional distress and punitive damages since your lawyer should find a way to justify a specific monetary amount to something that can otherwise be argued as subjective.
What is the Retaliation Case's Statute of Limitations?
In most cases, you have one year from the retaliatory act date (usually a termination or demotion) to obtain a right-to-sue letter from the Department of Fair Employment and Housing.
You have one year to submit your complaint in state or federal court after that. Your lawyer on your behalf usually obtains this right-to-sue letter.
Employees of public entities have a separate statute of limitations. Because the statute of limitations can be as short as six months in some cases, you should seek the help of a California Employment Attorney as soon as possible after being retaliated against.
Find The Best Workplace Retaliation Attorney Near You
If you have been discriminated against, Wrongfully Terminated, threatened, or retaliated against at work, you might be entitled to compensation for past and future losses, back pay, front wages, past and future pain and suffering, and emotional distress damages.
Our prescreened Los Angeles Employment Lawyers understand that a Labor Law dispute can cost people their jobs and their money, and emotional well-being.