How It Just Got Easier For California Workers To Get Justice For Employer Retaliation

You’re an associate at a wealth management firm in Sacramento, where, for the past couple of months, your manager has been making increasingly inappropriate comments about your appearance and body.

You tried to tell your manager that these comments make you uncomfortable, but he laughed off your concerns.

You go to speak to HR, saying that you’re considering filing a formal complaint of sexual harassment against your manager.

But the next day, your manager calls you into his office, where you learn you’re being fired. Despite your history of positive performance, you weren’t a good fit for the firm’s culture, your manager says. 

You’re shocked: This is the first you’ve heard this criticism from anyone at the company. Given your successful performance record, you suspect that your manager is punishing you for reporting his behavior to HR. 

This situation is one of the most common and obvious forms of illegal retaliation in California workplaces today. But many employees don’t realize that termination isn’t the only way that employers illegally punish workers.

Fortunately, a 2023 revision to the California Labor Code will soon give employees a leg up in identifying and holding employers accountable for this kind of abuse of power.

In this blog post, we’ll review how California defines workplace retaliation, and describe how a new state law clears the way for more employees to get restitution for it.

We will also explain how to get help if you’re concerned about employer backlash for exercising your rights.

If you have questions about non-compete agreements, please contact the experienced California employment lawyers at Ottinger Employment Lawyers today.

What Does Employer Retaliation Look Like In California?

At base, retaliation is a kind of illegal disciplinary action that an employer takes against an employee. 

Although firing is the most obvious way that employers discipline employees, a variety of different actions can be considered retaliation, including:

• Demotion
• Withholding opportunities for advancement
• Denied job benefits
• Reducing job assignments or hours
• Work sabotage 
• Harassment
• Threats of termination, legal action, or violence 

These kinds of adverse actions become illegal retaliation, specifically when they’re directed towards someone as punishment for exercising their legal rights as a worker and California resident.

This covers a lot of different situations, all of which can arise for workers across industries and job titles. 

Here are some of the types of “protected activities” covered by California’s anti-retaliation laws:

• Taking time off to serve on a jury or as a witness in court.
• Using sick leave or FMLA to care for a family member.
• Joining a union.
• Filing a complaint for discrimination, harassment, or other Labor Code violations.
• Requesting workplace accommodations for a disability or pregnancy.
• Discussing wages with other employees.
• Reporting unsafe working conditions or suspected criminal activity by an employer.
• Refusing to participate in illegal activity on the instructions of an employer.

If you engage in one of these activities, your company can face legal consequences if they negatively alter your employment situation because of it.  

How Is California’s Anti-Retaliation Law Changing In 2024?

Despite these legal protections, though, not only does workplace retaliation still happen: it’s also frequently swept under the rug, especially when it takes subtle forms. 

That’s why the passage of California’s newest anti-retaliation law, Senate Bill 497, is important news for workers across the state.

SB 497, also known as the Equal Pay and Anti-Retaliation Protection Act, revises several sections of the California Labor Code in order to make it easier for employees to bring retaliation cases against their employers. 

How? By creating what’s called a “rebuttable presumption of retaliation” that goes into effect whenever an employee is disciplined or fired within 90 days of engaging in certain protected activities. 

In essence, a rebuttable presumption of retaliation means that a court will assume that the employer’s negative action is a form of retaliation until proven otherwise. 

For example, if an employee at a bank is unexpectedly demoted two months after filing a complaint about a denied pregnancy accommodation, under the new law, the bank is legally presumed to have acted in retaliation.

Now, the banker can take her employer to court, where the onus will be on them to prove that the demotion was motivated by reasons that weren’t retaliatory.

According to the text of the bill, this new “presumption of retaliation” applies specifically to the types of protected activities covered under Labor Code sections 98.6, 1102.5, and 1197.5. Some protected activities include:

• Filing a claim or complaint with the Labor Commissioner for any Labor Code violations.
• Agreeing to testify or participate in an investigation into Labor Code violations.
• Complaining to an employer about unpaid wages.
• Disclosing information to an authority or another employee about illegal activity, Labor Code violations, or regulatory non-compliance.
• Refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
• Disclosing information about wages, or discussing wages with other employees.
• Pursuing any action to enforce a worker’s rights under the Equal Pay Act.

The extra layer of protection that SB 497 brings to employees engaged in these activities goes into effect on January 1, 2024.

And, once it does, employees who successfully bring cases of retaliation against their employers can also receive civil penalties of up to $10,000 in compensation.

What Should I Do If I Think My Employer Is Punishing Me For Exercising My Rights?

If you think you’ve been the target of illegal retaliation at work, there are a couple of important actions to take. 

First, collect as much evidence as you can about the incident. This includes details about the negative treatment you experienced as well as the action that you took that you suspect motivated it.

Gathering past performance reviews and any records or data that can speak to your satisfactory conduct as an employee is also a good idea. Keep a record of any emails or messages that you and your employer exchange about your performance or the negative treatment.

Next, understand your legal protections. It’s illegal for your employer to punish you for demanding your rights to a fair wage, refusing to break the law, or blowing the whistle on workplace misconduct.

Even if your employer retaliates against you for an action that you haven’t yet taken — e.g. filing a complaint with the Labor Commissioner — they’re still breaking the law and can be held accountable.  

Finally, consult with an employment attorney. Just because an employer has a non-retaliatory excuse for disciplining or firing someone doesn’t mean that they’re automatically cleared of retaliation charges.

Under California law, employees still have the opportunity to get restitution for retaliation, even if an employer has a non-retaliatory excuse for their actions.

An experienced employment lawyer is an invaluable resource who can assess your situation, help you build a case, and support you in the fight to win recovery. 

Connect with a California Employment Attorney Today

Ottinger Employment Lawyers has been helping employees get justice for workplace misconduct for over 20 years.

If you work in California, and you’re concerned about unlawful retaliation in your workplace, contact our team of experienced employment attorneys today to discuss your case.

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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