3 Things Every Employer and Employee Should Know About Retaliation Claims

The term, “Retaliation” in the employment context is used very loosely in our everyday language. But in the law, the term bears a particular meaning and a claim for “Retaliation” is comprised of particular legal elements that must be established to prove the existence of retaliation in the workplace. In representing both employers and employees throughout Orange County, San Bernardino County, and Los Angeles County, I am frequently asked similar questions by employers and employees regarding what is considered “retaliation.” In this post, I summarize my responses to many of these frequently asked questions in the following 3 “must- knows” for every employee and employee in California.

Retaliation Claims Arise From an Employer’s Retaliatory Response to a Complaint

1) California law – including the Fair Employment and Housing Act (FEHA), the Labor Code, and the Family Rights Act – prohibits employers from retaliating against employees who engage in “protected activity.” In other words, an employer is prohibited from firing, suspending, or taking any other type of adverse employment action against an employee as a result of the employee engaging in activities protected under the law, such as complaining of unlawful conduct (or “whistleblowing”), refusing to engage in illegal conduct, or seeking to enforce a protected right. So, for example, if an employee complains of receiving inaccurate wage statements, complains of not being provided meal and rest breaks, complains of sexual harassment, or complains of not receiving a reasonable disability accommodation and is then FIRED by the employer, the employer may be subject to a retaliation claim and may have to pay significant damages, such as loss of future wages and emotional distress damages. As these examples illustrate, retaliation claims arise because of an employer’s retaliatory response to a complaint by an employee.

Retaliation Claims are not the Same as Wrongful Termination Claims

2) Although retaliation claims are brought along with wrongful termination claims, they are NOT one-and-the-same. Wrongful termination claims involve allegations that the employee was unlawfully terminated. But retaliation claims can be much broader than this. Employers can be liable for retaliation not only if an employee is terminated, suspended, or demoted but also if the employee is issued a negative performance evaluation, ostracized, or has her hours or pay reduced. Further, the statute of limitations to file a wrongful termination claim is longer than the limitations period to file a statutory claim for retaliation.

Document Complaints and Corrective Action

3) Like with most other employment-related claims, employers and employee must DOCUMENT! DOCUMENT! DOCUMENT! Documenting complaints – or lack of complaints – submitted by employees can be the difference between winning and losing on a retaliation cause of action. An employee will typically claim in her lawsuit that she complained, in writing or verbally, of, say, sexual harassment and was fired or suspended shortly after. If the employer has a company policy of documenting complaints by employees, then it may be able to show either (a) that it documented the complaint and immediately corrected the underlying problem or (b) because there is nothing in the employee’s file documenting the complaint, the employee never made a complaint, and thus the employer could not have retaliated against the employee for making the complaint. Likewise, the employee’s documentation regarding any complaints she submitted can be equally damaging.

YASH LAW GROUP has extensive experience handling retaliation claims on behalf of employers and employee, and can offer a unique perspective to its clients’ cases as a result. To schedule a free consultation, please do not hesitate to contact us.