Retaliation at workplace is generally defined as taking adverse action against an employee who engaged in a “protected activity” because he/she engaged in that activity. That adverse action can be termination, demotion or other significant, negative changes. Not all forms of reprisal at workplace are unlawful. In fact, to have a claim for illegal retaliation, the reason for that retaliation must be an employee’s protected activity.
I. Major Protected Activities by Anti-Retaliation Laws
There are several types of activities which are considered “protected” for the purposes of anti-retaliation laws in California. Below are a few most common types of such activities:
1. Protection for exercising certain civil rights at workplace. This includes complaining about unlawful discrimination, harassment or unlawful retaliation at workplace against yourself or against a fellow co-worker.
2. Protection against retaliations for exercising disability rights. Disability / medical condition related protected activities, such as filing a workers compensation claim, requesting to take FMLA leave or disability leave under ADA / FEHA, requesting accommodations to a disability, or complaining about the employer’s violations of disabilities laws.
3. Retaliation protection for those who report certain workplace improprieties. This covers engaging in safety related protected activities, such as complaining about unsafe workplace, violations of safety code, non-compliance with OSHA laws, substandard patient care, and witnessing or being asked to engage in criminal violations at work.
4. Protection against retaliation for complaining about labor code violations. This includes complaining about not being paid overtime or other wages due, complaining or filing a claim for being misclassified as an independent contractor, not receiving proper meal and rest breaks, complaining improper time cards alteration, etc.
California Labor Code section 98.6 prohibits retaliation against employees for filing or threatening to file a complaint with a Labor Commissioner, or for exercising any other rights under the Labor Code. The “threatening to file” part is important, because an employee might be able to make a retaliation claim even if he was terminated before making a complaint, as long he communicated his desire or intent to complain to the employer.
5. Whistleblower anti-retaliation protection. This includes complaining internally or to government agencies about the employer’s administrative and criminal violations, tax evasion, fraud, embezzlement, insider trading, etc. (Cal. Gov. Code 1102.5), and whistleblower protection for state workers under Gov. Code 8547, and whistleblowing about corruption. The nurses are also protected from retaliation when complaining about nurse-to-patient staffing ratios at their workplace.
Most types of other complaints that employees make do not fall into the protected activity category. Thus, complaining about being treated unfairly, being micromanaged, not getting along with co-workers or management, not receiving more desirable assignments, etc… is not considered a protected activity. This means that even if the employer was to admit that they fired you for making that type of complaint, this would not be a basis for a retaliation / wrongful termination claim.
II. Typical Challenges In Proving A Retaliation Case in California
Usually the main challenge in proving a retaliation case is the “because” part. It’s easy to show that an employee engaged in a protected activity, and that an employee suffered an adverse employment action, such as being fired. However, it is often much harder to prove the employer’s motive for terminating an aggrieved employee was a protected activity and not some other reason claimed by the employer.
The fact that employers may use their subjective judgment in evaluating an employee’s performance, and the fact that their reasonable, even if not completely fair and accurate, determination is hard to question legally makes proving retaliation claims more difficult. This is where timing of events, documentary evidence, witnesses, evidence that other equally situated employee, who didn’t engage in the same protected activities weren’t disciplined as harshly, and other circumstantial evidence must be explored to cast doubt, among other things, on the employer’s proffered reason for firing an employee.
Once an employee shows that the reason given by the employer for terminating that employee is not truthful, inconsistent or at least doesn’t make sense, this will be the first step to either proving retaliatory motive or engaging in productive settlement discussions of a potential or existing retaliation claim, especially in FMLA retaliation cases.
Most employers will defend a retaliation case by claiming that an employee was terminated for poor performance or some kind of misconduct. This includes allegations of insubordination, violations of policies, etc. Often, giving a false reason for termination alone is not enough to prove retaliation. Most courts agree that lying about the reasons for termination is not the same as retaliating. However, a combination of inconsistent reasons for being fired, along with timing of engaging in a protected activity relative to termination, and other factors can be very useful in proving unlawful retaliation and resulting wrongful termination.
III. No Individual Liability in Retaliation Cases
As angry as you might be with the manager who retaliated against you and/or fired you, you need to know that generally individual managers are not personally liable for retaliation. In other words, they can’t be sued personally for retaliation, and they certainly won’t have to pay any type of settlement or judgment out of their own pocket, even if they are found to be at fault for engaging in retaliation. Of course, they might still be disciplined by the employer for what they have done to you, but that’s a different story.
This shouldn’t make any major difference to you and your case, since the employer is the one who is in the best position to compensate you for their violations and your losses.
IV. Oral Complaints Are Protected
The Supreme Court made it clear that an employee’s oral complaints are protected as much as the written ones. Kasten v Saint-Gobain Performace Plastics Corp. (2011). Still, for obvious reasons proving that an oral complaint was made is much harder than having an actual document or e-mail reflecting that complaint. After all, 9 times out of 10 the employer will deny hearing a complaint if they can.
V. Wider Range of Workers Is Protected
Anti-retaliation protection is significantly broader than anti-discrimination protection, protecting not just employees but “anyone” which certainly includes independent contractors and even third parties in certain situations.
VI. The Good News for Victims of Retaliation at Workplace
One of the most powerful aspects of a retaliation case is that an employee may be able to win it even if the underlying complaint was found to have no merit. For instance, an employee might complain about discrimination and be fired shortly after. Even if it’s found that no discrimination took place, that employee might still be able to prove that he was terminated in retaliation for making that complaint, even if it turned out to not be correct. The only part that’s required is that the employee had a good-faith, reasonable belief in what he was complaining about. In other words, you can’t simply make up things and complain about them. There has to be some legitimate basis for making a complaint about discrimination, harassment or any other type of protected complaint.
If you are employed in Sacramento and you believe that you have been a victim of illegal retaliation, or if your employer has just started a campaign of retaliation against you, feel free to contact us to discuss your legal options.