Workplace Retaliation

State: Under California State law, it is illegal for an employer to retaliate against an employee for lodging a discrimination or harassment complaint with local, state, or federal agencies.  The Fair Employment and Housing Act (FEHA) protects an employee who is a Whistleblower:

Section 12940(h) states,

(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [California Government Code section 12940(a)] or because the person has filed a complaint, testified, or assisted in any proceeding [pursuant to that section].

California law restricts an employer’s ability to retaliate against an employee based upon:

• Participation in a Union
• Service on a Jury, (or Participation as a Witness)
• Refusing to Commit Perjury
• Arrest or Detention (NOT RESULTING IN CONVICTION)
• Taking Leave Due to Domestic Violence
• Serving as an Election Officer on Election Day
• Illiteracy
• Injury in the Course of Employment, and Seeking or Being Awarded Worker’s Compensation Benefits
• Military Service
• Political Activity
  Visiting Child’s School
• Refusing Random Drug Tests
• Whistleblowing

Federal:  In addition to California State law, mentioned above, there are many Federal laws that also prohibit Workplace Retaliation. Federal law restricts an employer’s ability to retaliate against an employee based upon:

• Civil Rights Act, Title VII
• Age Discrimination in Employment Act
• Americans with Disabilities Act
• Equal Pay Act
• False Claims Act
• Fair Labor Standards Act

It is unlawful for an employer to retaliate against an employee for speaking out when they feel they are being discriminated against. Possible types of Discrimination In The Workplace include, but not limited to:

There are many ways an employer can retaliate against an employee:

• Job Demotion

• Job Transfer

• Reduction in Hours

• Reduction in Pay

• Termination

Sometimes, Workplace Retaliation can be subtle. An employee may intentionally be forced to work an undesirable job shift, that a supervisor knows will be detrimental to that employee’s personal situation. What if the employee cares for a young child, or maybe for an elderly parent?

It is best to consult with a knowledgeable and trusted Employment Law Lawyer, PRIOR to filing a claim or a civil lawsuit against one’s employer. An experienced legal professional can review your situation, and tell you whether or not your employer’s actions would constitute Workplace Retaliation.

In order for an employee to successfully prevail with a Workplace Retaliation claim against his/her employer, the following elements must be present (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042):

1. The employee is protected by FEHA;
2. The employee’s actions are “protected” by FEHA (see California Government Code, Section 12940);
3. The employer is covered under FEHA;
4. The employer acted adversely toward the employee, who was engaging in protected activity;
5. The employer’s adverse (or illegal) activity, and the employee’s protected activity (possibly Whistleblowing), were directly related.

An experienced Employment Law Attorney can help figure out if all the elements are in place, to support a Workplace Retaliation claim. If you believe you are the victim of Employment Retaliation, you should hire an attorney that is well versed in protected employment activity, pursuant to California State and Federal laws. The Workplace Retaliation Lawyers at SANFORD A. KASSEL, A Professional Law Corporation, have extensive experience handling these types of cases. We will help you build a convincing case against your employer. We will protect your legal rights.

An at-will employee may have grounds for a civil lawsuit against an employer who discharges them for (a) performing an act that public policy encourages; or (b) for refusing to do an act that public policy condemns.

If you are being retaliated against by your employer, or a co-worker, here are some of the things you need to do:

• Gather evidence to support your Workplace Retaliation claim
• Document any reference possible to the actual retaliatory behavior your employer has engaged in against you
• Consider researching and tracking any historical information that supports your position (Do you have first-hand knowledge that this type of retaliatory behavior by your employer has happened to other employees?)

Once you obtain all pertinent evidence, you will want to take the next step of filing a complaint with the proper authority.

In situations like these, it is important that you contact a knowledgable and trusted Employment Law Attorney who has experience with Workplace Retaliation cases, PRIOR to filing any complaint with the California Labor Commission. For instance, it may be necessary to file your complaint with California’s Department of Fair Employment Housing DFEH, or Federal Government’s Equal Employment Opportunity Commission (EEOC), rather than the California Labor Commission–depending on the scope of your employment status, the type of retaliation that has occurred, and the type of activity that is protected. You will need the legal advice of an expert, to determine the best course of action.