Standing up for your rights and the rights of your coworkers at work takes courage. So does reporting suspected illegal activity.
These actions are often necessary and sometimes even required by law. But your employer might not react supportively. Instead, you could face punishment. Speaking out may lead to demotion, termination, or harassment.
This is employer retaliation, and it’s often illegal. Retaliation can stem from actions at work or protected activities outside of work.
Fortunately, federal and California statutes forbid many forms of retaliation. Understanding these laws is key. You need to know which actions are protected and what counts as unlawful retaliation.
California retaliation claims can be complex. Several different state or federal laws may apply, and multiple laws may apply to an individual situation. The specific law matters. It dictates your deadline to file a claim, outlines required steps, and determines potential remedies.
This article breaks down everything you need to know. We define retaliation under key laws, including California’s whistleblower protections. We’ll also outline specific steps to take if you believe you’re facing illegal retaliation.
How Does California Law Define Employer Retaliation?
So, what exactly is illegal employer retaliation? Under federal and California law, unlawful workplace retaliation has two key elements:
These are important legal concepts. Let’s explore what “adverse action” and “protected activity” really mean in practice.
What is an Adverse Employment Action?
What makes an employer’s action legally “adverse”? It needs to have a real, negative impact. Specifically, the action must materially and detrimentally affect your job’s terms, conditions, or privileges.
It has to be serious enough to deter a reasonable employee from asserting their rights. Minor inconveniences or punishments don’t count as adverse actions.
Here are common examples of actions that usually do qualify:
Importantly, most of these actions aren’t illegal on their own. They become illegal when your employer takes them because of your protected activity or based on unlawful discrimination.
What’s the Difference Between Discrimination and Retaliation?
Discrimination targets you based on who you are – specifically, your membership in a legally protected class. For example, an employer can’t refuse to promote employees simply because of their race or gender. We’ve covered protected classes much more extensively in our Complete Guide to California Laws on Discrimination.
Retaliation, however, focuses on what you do. It’s based on your protected activities, not your identity or group membership.
Employers often defend against retaliation claims by claiming a non-retaliatory reason for their actions. That’s why it’s so important to establish a connection between the adverse action and your protected activity, which we’ll describe below.
What is a Protected Activity?
What exactly is a “protected activity”? Generally, these are specific actions that the law shields from employer retaliation. They fall into two main categories:
Here are common examples of protected activities under California and federal laws:
Remember, this isn’t an exhaustive list. Specific federal and California laws define protected activities in greater detail. We’ll explore those next.
Which Laws Protect Workers Against Employer Retaliation?
Employees’ right to be protected from workplace discrimination and retaliation was hard-won and evolved over time. Current anti-discrimination laws stem from the Civil Rights movement of the 1960s, which led to the landmark Civil Rights Act of 1964. That Act laid the foundation for banning discrimination in many areas, including employment.
Title VII of that Act specifically tackles workplace discrimination. Later, in 1972, the Equal Employment Opportunity Commission (EEOC) clarified that Title VII also outlaws retaliation for specific protected activities.
Initially, winning Title VII retaliation cases wasn’t easy. Employers often made excuses. They might claim poor performance, not retaliation, was the reason for firing someone, and they’d try to avoid blame if a supervisor retaliated without higher-level knowledge.
But Congress significantly strengthened Title VII in 1991. These key changes gave workers more power against retaliation. Now, employees could seek damages for emotional distress and suffering, and the changes also extended filing deadlines and made it easier to prove retaliation was the true motive.
Title VII isn’t the only federal shield. Several other key federal laws also protect employees from retaliation:
That’s a quick look at major federal protections. This article focuses specifically on California employment law, so let’s dive into the anti-retaliation laws unique to California.
How California Law Addresses Workplace Retaliation
California doesn’t just follow federal anti-retaliation law. It often provides even stronger protections through its own state laws. A cornerstone of this protection is the Fair Employment and Housing Act (FEHA).
FEHA is a powerful state law. It bans discrimination broadly – in employment, housing, business practices, and public accommodations. In fact, FEHA offers some of the strongest anti-discrimination and anti-retaliation protections in the U.S.
In the workplace, FEHA specifically shields employees who report discrimination or harassment. It also protects those who help others report or who oppose discriminatory practices themselves.
Here’s a key point about FEHA: it protects you from retaliation even if the conduct you reported isn’t ultimately found illegal. As long as you had a reasonable, good-faith belief that your employer’s actions violated the law and reported it, they can’t legally punish you for speaking up.
FEHA is vital, especially regarding discrimination-related retaliation. But California has other important laws protecting against different types of retaliation. Let’s look at those now.
How Does California Law Protect Whistleblowers From Retaliation?
What’s a “whistleblower”? It’s someone who reports suspected illegal activity, waste, or fraud within an organization. California takes protecting whistleblowers seriously and offers significant safeguards against retaliation.
It’s important to know that different state laws often apply to specific situations. The requirements and protections can vary depending on the law. For example, some laws might require you to file a formal complaint with a specific government agency first to gain protection.
We’ll highlight a few key California whistleblower laws below. For a more comprehensive look and deeper details on each, please see our dedicated article: What Do California’s Whistleblower Laws Mean in the Workplace?
How the California Labor Code Specifically Protects Whistleblowers
A key California law here is Labor Code Section 1102.5, often called the California Whistleblower Protection Act. It shields employees who report suspected violations of state or federal laws, regulations, or rules.1
This law protects you when you report suspected violations to:
Section 1102.5 also protects employees who refuse to participate in an activity that would violate state or federal laws, regulations, or rules.
A 2013 update (Senate Bill 496) expanded Section 1102.5 even further. Because of this change, employers also can’t punish employees for reporting potential violations directly to government or law enforcement agencies, or for cooperating with investigations or hearings.2
California Occupational Health and Safety Code
California’s Occupational Health and Safety Code (Cal/OSHA) doesn’t just set safety standards. It also strongly protects employees who report health or safety concerns on the job.3
Specifically, Cal/OSHA forbids retaliation against employees for actions like:
If your employer punishes you for any of these protected activities, it likely counts as illegal retaliation under Cal/OSHA.
Workers’ Compensation
Labor Code Section 132a specifically protects your right to file or pursue a workers’ compensation claim after a job-related injury. Your employer can’t legally fire, demote, harass, or otherwise discriminate against you just because you filed or pursued a workers’ comp claim.4
Importantly, this protection applies even if your claim is ultimately denied. What matters is that you filed it in good faith (meaning you honestly believed you were entitled to benefits based on your injury). You’re also protected from retaliation if you testify truthfully in a coworker’s workers’ comp hearing.
California False Claims Act (CFCA)
The California False Claims Act (CFCA) protects employees who report fraud against state or local governments. If you suspect your employer is misusing government funds or submitting false bills, the CFCA allows you to file a special lawsuit called a qui tam action.5
People who file these suits are called “relators.” If the qui tam suit successfully recovers government money, the relator may receive a share of the recovery as a reward.
Remember: The CFCA targets fraud against California state or local governments only. For fraud against the federal government, you’d use the separate Federal False Claims Act (FCA).
The CFCA also protects you from retaliation for:
Qui tam lawsuits are complex. If you’re thinking about this path, it’s crucial to consult an attorney experienced in CFCA cases. An experienced lawyer can help evaluate your situation and explain your rights and obligations as a potential relator.
Tameny Claims (Retaliation in Violation of Public Policy)
What if specific anti-retaliation laws don’t seem to cover your situation? You might still be protected if your employer acted against a strong public policy. These cases are often called Tameny claims.
The name comes from a landmark 1980 California Supreme Court case, Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167. In that case, the court ruled employers can’t fire workers for refusing to do something illegal or that violates fundamental public policy.
While Tameny initially involved wrongful termination, courts now apply the same principle to other retaliatory acts like demotion or harassment.
So, what counts as a “fundamental public policy”? It generally must:
Examples of actions potentially protected by this public policy doctrine include:
If you’ve faced retaliation for reasons like these, a Tameny claim might be an option. But these claims are complex and highly fact-specific. It’s crucial to discuss your specific situation with an experienced employment lawyer. (We’re available: click the button above [on desktop] or below [on mobile] to get started.)
What to Do if Your Employer Retaliates Against You Illegally in California
This article has outlined key protections against employer retaliation in California. If you believe you’ve faced illegal retaliation, what should you do next?
First, document everything meticulously. Keep detailed written notes: specific dates, times, locations, and exactly who was involved in each incident. Gather and preserve any evidence you have, such as:
Timeliness is critical. Retaliation claims have strict legal deadlines (called statutes of limitations) that vary widely depending on the specific law and facts involved. Missing a deadline usually means losing your right to file a claim. For example:
The complexity and strictness of these deadlines make getting prompt legal advice essential.
Retaliation cases often involve multiple laws and intricate procedures. It’s crucial to speak with an experienced California employment lawyer.
A knowledgeable lawyer can carefully analyze your specific situation. They’ll help identify which laws and deadlines apply, and determine if you need to file administrative complaints first (e.g., with the California CRD or federal EEOC). They can also manage required paperwork and develop the best legal strategy for your case.
Understanding potential outcomes is also important. If your retaliation claim is successful, California law allows for various remedies designed to make you whole (compensate for losses) and potentially punish the employer’s wrongdoing. Depending on the specifics of your case, potential relief can include:
We recommend getting in touch with an employment attorney who will offer a free initial consultation . This is your opportunity to confidentially discuss the details of your situation and understand your potential legal options with no obligation to hire the firm. Be sure to ask if the lawyer works on contingency. This arrangement means the lawyer only gets paid if they successfully recover money for you through a settlement or court judgment.
If you believe your employer retaliated against you illegally in California, getting timely and informed legal advice is vital. We’re dedicated to helping employees understand and enforce their rights. Contact us for a free, confidential consultation using the button below (mobile) or above (desktop).