May 8, 2020
The advice is simple – don’t do it! Retaliation is illegal and can result in large verdicts against employers.
Retaliation consists of some adverse action against an employee because the employee either engaged in some activity protected by law or assisted a co-worker in doing the same. For example, if an employee complains that he/she is being discriminated against because of age, and the employer then demotes the employee or takes some other adverse employment action against the employee, that could constitute retaliation. Whether it actually does constitute retaliation depends on the employers’ motive. The employer may say the employee would have been demoted anyway, and that it had nothing to do with the employee’s complaint. This is a question of fact, however, which a jury would decide.
Retaliating against an employee for complaining about discrimination or harassment related to race, national origin, religious creed, color, ancestry, gender, gender expression, gender identity, sexual orientation, physical disability, mental disability, genetic information, medical condition, marital status, or veteran or military status is illegal. It is also illegal to retaliate against an employee for requesting or taking pregnancy leave, disability leave or leave under the Family and Medical Leave Act or the California Family Rights Act. It is also illegal to retaliate against an employee for filing a workers’ compensation claim, for complaining about a Labor Code violation, or even for requesting to see his/her personnel file.
Also illegal is retaliation against an employee for complaining of ethical violations and violations of laws not relating to employment. This includes such things as complaining about business practices, billing practices, safety issues, business compliance issues of any sort, and illegalities of any sort. Complaining that the employer is violating FAA or OSHA regulations falls into this category. Interestingly, the employee does not even have to be legally correct in assessing the matter. For example, if an employee is fired in retaliation for complaining that the employer is illegally violating FAA regulations, but in fact the employer was complying with FAA regulations, the employee still has a viable retaliation claim. It suffices if the employee had a reasonable based suspicion of illegal activity.
Retaliation against an employee who testifies in support of another employee, or complains on behalf of another employee, is generally also illegal. The second employee need not testify in any formal proceeding in order to be protected from retaliation. Simply reporting a wrong to a manager would be sufficient. California law also prohibits employers from retaliating against an employee who is a family member of an employee who has or is perceived to have made a protected complaint.
An employee need not have been terminated in order to have a viable retaliation claim. There need only have been some adverse job action. This would include demotion, unwanted transfer, adversely changing the employee’s working conditions, shortening the employee’s hours, putting the employee on the night shift or making the employee do menial tasks, among other things.
Not just employers, but even individual managers and supervisors can be sued for retaliation. While the burden of proving the required retaliatory motive is on the employee, this is little consolation to an employer which has to bear the expense and inconvenience of a jury trial. In the end, the employer must be able to convincingly demonstrate that whatever happened to the employee had nothing whatsoever to do with the employee’s earlier protected action or the employee’s protected characteristic.
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ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.