Workplace Retaliation

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

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.

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