Updated on November 16th, 2023
Under California retaliation law and federal EEOC retaliation law, it is unlawful for an employer to retaliate against an employee. The definition of retaliation is when an employer punishes an employee for doing or saying something protected by law. Retaliation is usually apparent when the employer suddenly reacts negatively to the employee.
What is retaliation in the workplace in California?
Don’t hesitate to get in touch with our workplace retaliation lawyer for a free consultation if any of the following occurred:
- Employer disciplined you.
- The employer suspended you.
- Employer transferred you.
- Employer demoted you.
- Employer reduced your pay.
- Employer reduced your working hours.
- Employer retaliates against an employee for filing a complaint with the California labor board or EEOC, filing a lawsuit, or being a witness.
- Employer retaliates against an employee for answering questions in a company’s investigation.
- Employer retaliates against an employee for refusing supervisor/manager’s instruction that is discriminatory or illegal.
- Employer retaliates against an employee for resisting sexual advances or protecting another employee from sexual advances.
- Employer retaliates against an employee for requesting disability, time off, or accommodation.
- Employer retaliates against an employee for speaking up about safety concerns.
The above list is not exhaustive. If you believe your employer is retaliating against you, please call our workplace retaliation attorney to see if you have a claim. If you want to make a complaint yourself, you may contact the California Department of Industrial Relations, Retaliation Complaint Investigation Unit.
Labor Code section 96(k)
Provides the Labor Commissioner with authority to be assigned claims for loss of wages that arise from retaliation for lawful conduct occurring during nonworking hours and away from the employer’s premises.
Labor Code sections 1030-1033
Employers are prohibited from discharging or in any manner retaliating against an employee for exercising or attempting to exercise any right under the state lactation accommodations laws to express milk for the employee’s infant child. Workers have a right to file a retaliation complaint for such violations under section 98.7.
Labor Code section 1102.5 (b)
Subsection (b) protects against retaliation for disclosing information, or because an employer believes an employee has disclosed information or may disclose information, to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has the authority to investigate, discover, or correct a violation, where an employee reasonably believes that the information discloses a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
Labor Code 1197.5
Employees who invoke or assist with the enforcement of the Equal Pay Act are protected against retaliation. Employees are protected if they disclose their own wages, discuss the wages of others, inquire about another employee’s wages, or aid or encourage any other employee to exercise his or her rights under this section. A complaint with the Labor Commissioner alleging retaliation must be filed within one year of the adverse action.
How can you prove retaliation from your employer?
To prove retaliation from your employer, it depends on the type of retaliation. Here are the laws for specific types of retaliation:
Where, as here, the plaintiff claims retaliation for exercising a constitutional right, the majority of federal courts require the plaintiff to prove that (1) he or she was engaged in constitutionally protected activity, (2) the defendant’s retaliatory action caused the plaintiff to suffer an injury that would likely deter a person of ordinary firmness from engaging in that protected activity, and (3) the retaliatory action was motivated, at least in part, by the plaintiff’s protected activity.” (Tichinin, supra, 177 Cal.App.4th at pp. 1062–1063.)
Retaliation for Refusing to Authorize Disclosure of Medical Information
An employer ‘discriminates’ against an employee in violation of section 56.20, subdivision (b), if it improperly retaliates against or penalizes an employee for refusing to authorize the employee’s health care provider to disclose confidential medical information to the employer or others (see Civ. Code, § 56.11), or for refusing to authorize the employer to disclose confidential medical information relating to the employee to a third party (see Civ. Code, § 56.21).” (Loder v. City of Glendale (1997) 14 Cal.4th 846, 861.
Retaliation for Exercise of Free Speech Rights
First Amendment retaliation claims are governed by the framework in Eng. See 552 F.3d at 1070–72. [Plaintiff] must show that (1) he spoke on a matter of public concern, (2) he spoke as a private citizen rather than a public employee, and (3) the relevant speech was a substantial or motivating factor in the adverse employment action. Upon that showing, the State must demonstrate that (4) it had an adequate justification for treating [plaintiff] differently from other members of the general public, or (5) it would have taken the adverse employment action even absent the protected speech. ‘[A]ll the factors are necessary, in the sense that failure to meet any one of them is fatal to the plaintiff’s case.’ ” (Kennedy v. Bremerton Sch. Dist. (9th Cir. 2017) 869 F.3d 813, 822, internal citations omitted.)
Equal Pay Act—Retaliation
The act prohibits adverse employment actions against an employee who has taken steps to enforce the equal pay requirements of the act. Also, the employer cannot prohibit an employee from disclosing that employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise that employee’s rights. (Lab. Code, § 1197.5(k)(1).) An employee who has been retaliated against may bring a civil action for reinstatement, reimbursement for lost wages and work benefits, interest, and equitable relief. (Lab. Code, § 1197.5(k)(2).)