What is Retaliation?
Unlawful retaliation occurs when an employer takes “adverse employment action” against an employee for engaging in “legally protected activity.”
Whistleblower & Other Retaliation Laws
An employee engages in “legally protected activity” when the employee:
- Reports an actual or suspected violation of law (i.e., “blows the whistle”)
- Opposes or complains about actual or suspected workplace discrimination or harassment
- Participates in a workplace investigation
- Opposes or complains about any unlawful pay practice
- Requests a reasonable accommodation for their disability or religious beliefs
- Requests or takes any job-protected leave of absence
- Files or assists in a qui tam lawsuit (e.g., a lawsuit under the False Claims Act)
An employer takes “adverse employment action” against an employee if the employer:
- Treats the employee differently than before (e.g., takes away shifts, increases workload, excludes the employee from meetings, imposes new work rules or policies)
- Denies the employee a promotion
- Disciplines or terminates the employee
Showing a “Causal Connection”
It is important to remember that, for illegal retaliation to occur, there must be a causal connection between the employee’s activity and the resulting adverse employment action. The employee’s activity must be the cause of the adverse employment action. If the employer can show otherwise – that the adverse employment action was already in process and going to happen anyway, even before the employee engaged in the protected activity – then the employer has a viable defense to a retaliation claim.
The easiest, most effective way for an employee to prove the causal connection between the employee’s activity and the resulting adverse employment action is by showing closeness in time between the two events. For example, if the employee told his supervisor yesterday that she was pregnant, and if the supervisor terminates the employee today, there is a strong causal connection between the employee’s revelation of her pregnancy and her termination.
California’s Rebuttable Presumption of Causation
As with many employment laws, California goes even further in favor of employees. Under California law, the law will presume that the employee’s activity was the cause of the resulting adverse employment action if the adverse employment action occurs within 90 days of the employee questioning the employer’s pay practices or workplace safety, requesting that the employer engage in lawful pay practices or address workplace safety issues, or exercising their rights under the Equal Pay Act.
In California, any employee who endures presumed retaliation is entitled to a $10,000 civil penalty in addition to other damages including reinstatement, back-pay (with interest), front-pay (with interest), lost benefits, pain and suffering, and attorneys’ fees.
How Workplace Legal Can Help
At Workplace Legal, attorneys in our Employment Litigation & Trials practice defend clients accused of unlawful retaliation in state and federal courts, before state and federal administrative agencies, and before private arbitrators and mediators. We’ve litigated cases involving almost every retaliation and “whistleblower” law, including the federal False Claims Act, Sarbanes-Oxley Act (“Sarbanes-Oxley”), Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”), and Occupational Safety & Health Act (“OSHA”), as well as claims under California’s Fair Employment & Housing Act (“FEHA”), Labor Code, and Occupational Safety & Health Act (“Cal-OSHA”).
In our Counseling & Preventive Advice practice, we regularly advise clients who have just received an allegation from an employee about possible retaliation. We advise the client on selecting a proper investigator and, following the investigation, the “immediate and appropriate corrective action” that should be taken by the employer to deal with the investigation’s findings. In our Workplace Investigations practice, we serve as neutral investigators for clients and interview witnesses, review evidence, make findings, and draft investigatory reports.
Not only does Workplace Legal investigate and defend retaliation claims for our clients, we also work to prevent them in the first place. In our HR Audits, Infrastructure & Strategy practice, we draft state-of-the-art equal employment opportunity policies for our clients – including the foundational Policy on Harassment, Discrimination, Bullying & Retaliation that all employers are required to have. We also counsel and employers and HR teams on how to recognize and prevent unlawful retaliation.
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