California employment law prohibits employers from engaging in workplace retaliation against employees who:
- Inform the authorities about violations of the law
- Complain about or take part in an investigation of workplace harassment or employment discrimination
- Seek reasonable accommodations for religious beliefs or disabilities
- Participate in a “qui tam” lawsuit under the California False Claims Act
Frequently Asked Questions About Workplace Retaliation
The questions and answers presented in the FAQ are not intended to be exhaustive and do not constitute legal advice for your particular question, issue, or concern, nor does this FAQ create any attorney-client relationship or duty on our part to assist you. The information may help you think about your issues and ask the right questions if you choose to consult with an attorney.
Is it retaliation if I don’t get a raise, or don’t get promoted?
Retaliation can take the form of any “adverse action” against an employee who engages in a protected action. Such adverse action usually takes the form of unequal treatment of the employee, which may include termination, harassment or threats, reduction in pay, or refusal to promote.
What types of situations are covered by whistleblower protections?
California law protects employees who:
- Report suspected unlawful conduct
- Oppose or refuse to engage in unlawful conduct
- Internally report illegal conduct
- Are required to engage in internal whistleblowing as part of their job
Employers cannot retaliate against such employees. Nor can employers retaliate against anyone in anticipation of potential whistleblowing.
Family members of the employee are also protected by these laws. For more information, read our blog post about whistleblowing protections in California.
I only complained within my company. Do I qualify as a whistleblower?
Yes, California protects internal whistleblowing.
Can I get fired for filing a lawsuit, or participating in a lawsuit?
Participating in a lawsuit against your employer is a protected legal right. If you are subject to an adverse action, such as termination, due to your participation in a lawsuit, you may be able to claim workplace retaliation.
How long do I have to file a workplace retaliation lawsuit?
In general, a discrimination claim—including a claim for workplace retaliation—must be submitted to the California Civil Rights Department (CRD) within three years of the date upon which the alleged unlawful practice(s) took place. There are other retaliation claims that do not go to the CRD. For example, California’s Labor Code has retaliation protections that do not require involvement of any government agency and can be filed directly in court. A three-year deadline applies to such Labor Code claims. A common law retaliatory discharge claim must be filed within two years.
Will it be public knowledge if I sue my employer for workplace retaliation?
Yes. Typically, lawsuits involving workplace retaliation are publicly available as they are filed with the court. However, the information contained in the lawsuit may be redacted in accordance with state and federal privacy laws. Additionally, the parties involved may agree to keep the lawsuit confidential.
Who do I contact if my employer is breaking the law?
You can file a claim with the CRD, who will investigate your claims. You can also consult with an attorney who can handle this process for you and obtain a right to sue letter so that you can bring your claims in court.
Workplace Retaliation in Lieu of Termination
California’s anti-retaliation laws bridge a major gap in previous employment laws. A variety of employment laws protect employees against wrongful termination, but what about employees who do not lose their jobs?
California’s whistleblower laws and Fair Employment and Housing Act (“FEHA”) retaliation laws offer legal recourse for employees whose employers don’t terminate them, but still retaliate against them in some way.
California Employee Protection Against Workplace Retaliation
Employees who have suffered retaliation at work are well protected in California. California’s Labor Code section 1102.5 offers the following protections:
- Protects employees who report suspected illegal conduct
- Protects employees who object or refuse to participate in unlawful conduct
- Protects employees from anticipatory retaliation in the event their employer believes their employee might be a whistleblower
- Protects employees who report misconduct internally
- Protects employees for whom internal whistleblowing is a required part of their job
In addition, section 1102.5 applies when the employer is mistaken in their belief that the employee has reported or may report illegal conduct. An employee’s family members are also protected.
Employee Activities Covered by California Workplace Retaliation Laws
No matter what type of illegality is committed—federal, state, or local law, or some other kind of illegality—an employee need not even use any special language of the law in order to invoke anti-retaliation protections. Numerous employee activities are covered by:
- Wage protection laws
- Consumer protection laws
- Family, medical and sick leave laws
- Privacy laws
- Discrimination laws
- Securities regulations for public companies
Real Life Examples of California Workplace Retaliation
There is no doubt that Labor Code 1102.5 is expansive in its anti-retaliation coverage, but what other types of less-obvious situations of employees taking a stand could trigger retaliation protections under California’s Labor Code 1102.5?
- An employee refused to follow a manager directive that he reasonably believed was illegal because it would violate health and safety requirements. This situation was similar to a healthcare whistleblower case that Valerian Law filed. This employee should be covered by 1102.5.
- A manager refused his boss’s demand that he demote an employee who had an excellent performance record but had just filed a sexual harassment report against the boss.
- An employee called an ethics hotline to report illegal business conduct or fraud, as in the Wells Fargo fake accounts scandal where scores of employees suffered retaliation (allegedly) after calling an internal ethics line.
- An anonymous ethics hotline report about one company intentionally defrauding another company, as in this case involving a paint manufacturer accused of a scheme that cheated a major retailer.
- An employee internally telling their bosses that they felt their firm’s parental leave policy was discriminatory, as in this case where a law firm employee was fired days after complaining internally.
Determining Reasonable Cause in Workplace Retaliation Cases
In most cases, does retaliation protection in California rely on establishing that there was in fact an underlying legal violation? The answer is no.
The Labor Code 1102.5 of California specifies that employees must have “reasonable cause” to believe their employer violated the law. According to Section 1102.5, it does not matter whether an employee actually proves that there was an underlying illegality. Rather, it only matters that the complaint is made in good faith.
Whistleblowing and California Workplace Retaliation Laws
In every retaliation case, defendants will argue that their adverse employment action was justified, whether it was termination, demotion, or some other negative action. The California Supreme Court recently delivered some good news for California employees. In Lawson v. PPG Architectural Finishes, Inc., the Court determined that:
Whistleblowers may prove their claims by a “preponderance of the evidence” that the whistleblowing activity was a contributing factor in a contested employment action.
Employers can defeat such claims only by showing “clear and convincing evidence” that they would have taken the same adverse action even if the employee had not engaged in protected activity.
As a result, now employees need only demonstrate that his or her “whistleblowing activity” contributed to their termination. When pursuing a claim under the California Labor Code 1102.5, employees do not have to prove that the employer’s pretextual explanation for termination was false. California’s Labor Code retaliation law differs from other retaliation laws, such as anti-discrimination statutes embedded with retaliation provisions. Equipped with these provisions, employees now have even more power to combat workplace retaliation.
Our California Workplace Retaliation Lawyers Will Fight For You
At Valerian Law, we know the legal system inside and out and will fight vigorously on your behalf. If you are a victim of workplace retaliation in California, contact us at 888-686-1918 to speak with one of our experienced California employment attorneys.