Retaliation cases are some of the most common claims filed by workers against their employers in California. Below is a simple, practical checklist that any employee can use for an early evaluation of whether or not they may have a legitimate retaliation case, before they even speak with an attorney:
(a) Did you suffer a “tangible” adverse employment action? This type of action includes termination, demotion or another action that significantly affects the terms and conditions of your employment. Getting a warning, a negative performance review or having your manager yell at you without more is usually insufficient, although of course it might be a strong indication that a more serious action against you is coming sooner than later. If that’s the case, you should strongly consider documenting any events relevant to your potential case, even if it’s too early to file a case against your employer.
(b) Did you engage in a “protected” activity prior to employer’s adverse action against you? One of the most common misconceptions among employees is assuming that as soon as they complain to their HR or higher management about anything, this means that they are protected from retaliation, and if their employer fires them afterwards, this means that they necessary have a case against their employer. Under the law, however, only some complaints are considered “protected”, i.e. which may form a basis for a retaliation case if you can prove that the employer fired you for making these complaints. These protected complaints include complaining about unlawful sexual harassment, racial harassment or discrimination, certain safety violations at work, testifying at any legal proceeding or participating in any type of workplace investigation, complaining about the employer’s wage / labor code violations internally or to outside agencies, such as Labor Commissioner’s Office, requesting medical leave or reasonable accommodations to a disability, and a limited number of other complaints. Just about any other type of complaint is not considered protected and even if it’s absolutely clear that the reason for your termination was making that complain, this will not form a basis for a case. These types of complaints (not protected) include complaining about your boss being mean, micromanaging you, issuing you unfair performance review, forcing you to do work that’s not in your job description, etc.
(c) Did the employer know about your protected activity prior to taking adverse action against you? To make a retaliation case, you must establish that the employer knew about your protected activity before retaliating. For instance, this can be an issue where your complaint is anonymous. If you can’t prove that the employer knew that it was your complaint, that case will be dismissed, for obvious reasons – an employer can’t be charged with retaliating for an activity he wasn’t even aware of. This element can usually be easily established by showing some proof of communicating your protected complaint to your management, such as an complaint email to HR or upper management.
(d) Can you establish that the reason the employer took action against you is that protected activity and not some other reasons, however unfair it might be? This is usually the most contested element of a retaliation case, since this involves proving motive and intent. Several types of evidence can be used to prove this elements:
(i) The first and obvious way to show retaliatory motive is timing of events. The closer that terminating is to your protected activity and stronger the presumption is that the employer retaliated. For instance, if you are fired a week after making a discrimination complaint, this is a much stronger evidence than being fired 6 month after making that complaint. There is no bright line rule about how close in time show the two events be, and each situation should be assessed individually, as other factors also come into play. Most California courts hold that timing alone is usually insufficient to prove a case, especially if the employer can show any type of legitimate, non retaliatory reason for impose discipline or firing a worker.
(ii) The best and probably the most rarely available evidence of retaliation is the “smoking gun” type of evidence– i.e. written communication from a manager (e-mail, text message or even social media message) to anyone about how much they dislike your protected activity and how they are looking to set you up for failure or termination because of that, or witness who overheard your manager say in so many words that they are unhappy about your protected activity and / or they are looking to get rid of you for that reason. Even one e-mail or one witness can make any retaliation case much stronger.
(iii) Another type of useful evidence to prove retaliation is showing that other employees who didn’t engage in a protected activity were treated better or were not punished as severely for the same violation. If you can show that another employee who has been late as much as you are or more often was only written up and you were terminated after being late a few minutes once or twice, this can be additional evidence of retaliation against you. Of course, you will have to show that the employer was aware of that other employee’s tardiness and chose to impose no discipline or far less severe discipline on him.
(iv) Other inconsistencies in the employer’s reasoning for your termination. This can including changing reasons for your termination, i.e. from telling you one reason at the time of your termination to coming up with other reasons later, or exaggerating the issues that lead to your termination, or fabricating these reasons altogether. For instance, if you are terminated for alleged complaints against you by customers or co-workers and you can show that no such complaint were ever made, this would be a strong evidence that there is another reason for your termination that the employer is trying to cover up. While this alone will certainly not suffice to make a retaliation case, this can be an excellent “icing on the cake” especially at the time of trial, as showing that the employer is not being truthful is one of the best way to not only win a case, but to also encourage the jury to enter a much higher award of the employee.