New Law Makes Establishing Retaliation Claims Easier For California Employees
California has some of the strongest employee protection laws in the United States. These laws ensure that workers who take a stand against illegal or unethical activities in the workplace are safe from employer retaliation. A recent change to these laws, taking effect in 2024, makes it even easier for employees to establish retaliation claims, providing them with greater security.
What is Workplace Retaliation?
Workplace retaliation comprises any negative or harmful actions an employer takes against an employee who has engaged in protected activities. These activities are actions the law safeguards to encourage employees to speak up against wrongdoing and ensure their rights are upheld. Employees have the right to engage in several types of protected activities in the workplace.
- Filing Formal Complaints: This includes submitting complaints about workplace discrimination, harassment (sexual or otherwise), wage and hour violations, safety hazards, or other illegal activities. Complaints can be made internally (to HR or a supervisor) or externally (to government agencies like the EEOC or the Department of Labor).
- Refusing Unlawful Orders: Employees have the right to refuse to participate in actions they reasonably believe are illegal or unethical. This could involve refusing to falsify documents, discriminate against a client or coworker, or engage in unsafe work practices.
- Cooperating with Investigations: Employees are protected if they participate in investigations into workplace misconduct, whether they are the victim or a witness. This includes providing testimony, statements, or evidence to support investigations.
- Taking Protected Leave: Laws like the Family and Medical Leave Act (FMLA) entitle employees to take time off for serious health conditions, caring for a sick family member, or bonding with a new child. Employers cannot retaliate against employees for taking this legally protected leave.
Retaliation doesn’t just mean getting fired. It can be overt or subtle, including:
- Demotion: Assigning the employee to a less desirable position with lower pay, fewer responsibilities, or a diminished reputation.
- Reduced hours: Cutting work hours, leading to a loss of income and benefits.
- Undesirable Transfer: Forcing the employee to relocate to a less convenient or less prestigious location.
- Salary Cuts: Reducing the employee’s pay without justification.
Reducing the employee’s pay without justification. - Hostile work environment: Creating an environment where the employee feels intimidated, ostracized, or harassed through negative comments, exclusion from meetings, or unfounded criticism.
- Termination: Firing the employee
- Denying Opportunities: Excluding the employee from promotions, raises, or training opportunities.
It’s important to remember that retaliation can still occur even if the employee’s underlying complaint or concern was unfounded – as long as the employee had a good faith belief that their actions were protected.
How Does California’s New Law Change Things?
Previously, to demonstrate employer retaliation, an employee needed to prove that the adverse action was directly and solely motivated by their protected activity. This was often a difficult standard to meet. The recently passed Equal Pay and Anti-Retaliation Protection Act (SB 497) lowers this standard.
Under the new law, if an employer takes adverse action against an employee within 90 days after they’ve engaged in certain protected activities, a presumption of retaliation applies. For instance, if you report misconduct and get fired just two weeks later, the new law presumes it was retaliation. The burden then shifts to your employer to prove the adverse action was legitimate and based on non-retaliatory reasons.
Which Activities Are Protected?
California’s strengthened anti-retaliation provisions focus on safeguarding employees who exercise their rights within the context of these specific Labor Code sections:
Section 98.6: Reporting Violations to Authorities
This section ensures that employees can speak out about labor law violations without fear of punishment. These violations might include:
- Wage theft (not paying overtime, not providing meal/rest breaks, misclassifying employees to avoid paying benefits)
- Workplace safety hazards (OSHA violations)
- Illegal employment practices (discrimination, harassment, child labor violations)
- Any other violations of state or federal labor laws
Section 1102.5: Wage Transparency and Pay Equity
This section empowers employees to discuss their wages openly and challenge discriminatory pay practices. Protection extends to activities like:
- Asking coworkers about their salaries
- Disclosing your own salary
- Raising concerns about pay disparities based on gender, race, or other protected factors
- Participating in protests or actions advocating for fair pay
Section 1197.5: Protection Against Discrimination
This section prohibits retaliation against employees based on protected characteristics. These characteristics include:
- Race
- Religion
- Color
- National origin
- Ancestry
- Physical or mental disability
- Medical condition
- Genetic information
- Marital status
- Sex
- Gender
- Gender identity
- Gender expression
- Age (40 and older)
- Sexual orientation
- Military or veteran status
The updated law specifically protects activities relating to these code sections. This means that an employee who reports a labor law violation, discusses their wages, or raises concerns about discrimination within the workplace is more likely to have a viable retaliation case should their employer take adverse action against them.
Fight Back Against Workplace Retaliation
California’s strengthened anti-retaliation laws offer substantial protection to employees who stand up for their rights. Understanding how these laws function and what they cover is vital for anyone navigating the workplace. If you suspect retaliation, don’t hesitate to seek legal advice. An experienced San Diego employment attorney can empower you to confront injustice and secure the justice you deserve.
At the Law Offices of John P. Martin, we have a proven track record of fighting for the rights of employees throughout California. If you’re facing retaliation in the workplace, contact us today for a confidential consultation.
Let us help you defend your rights and secure a just outcome.
