Unlawful Termination |
May 31, 2017

What is Workplace Retaliation

San Francisco employment lawyers explain how federal and California laws protect the right of employees to be free from unlawful retaliation

In California, there are laws prohibiting employers from retaliating against employees for engaging in protected activities. The San Francisco retaliation attorneys at Minnis & Smallets want employees to understand their rights so that they will recognize workplace retaliation if it occurs.

what is workplace retaliationWhat is Workplace Retaliation?

Retaliation can be broadly defined as taking an adverse action against an employee for engaging in activity that the law protects. Retaliation can take many forms, including termination, demotion, negative performance feedback or other significant changes to the terms of employment, and discourages other employees from engaging in protected activity.

Protected Activities — Opposing Discrimination and Harassment

In general, laws that prohibit retaliation protect the employee’s right to engage in defined activities that are protected by law. For example, laws that prohibit workplace discrimination or harassment generally protect an employee’s right to oppose discrimination or harassment by:

  • Reporting or complaining about discrimination or harassment to the employer, including a supervisor or human resources representative
  • Filing a complaint about workplace discrimination or harassment with a government agency
  • Asking other employees to testify about or provide evidence in support of a discrimination or harassment complaint
  • Cooperating with an investigation of workplace discrimination or harassment
  • Testifying as a witness in a legal proceeding that relates to workplace discrimination or harassment
  • Refusing to engage or participate in unlawful acts of discrimination or harassment
  • Resisting harassment that is based on sex, race, or any other characteristic that is protected by law

As a general rule, if the employee acts in good faith by making or supporting a discrimination complaint that the employee reasonably believes to be true, then the employee is protected—even if it turns out that the complaint was unfounded.

Employment laws that require employers to offer employees a reasonable accommodation, such as the accommodation of a disability or religious practice, protect the right to make those requests. Whether or not the employer is required to grant the request, the employer cannot retaliate against an employee who makes such a request for accommodation in good faith. Requesting an accommodation for a disability is protected activity.

Other Protected Activities — Whistleblowing

Whistleblower laws generally protect employees who report or refuse to engage in an employer’s violation of a federal, state or local law or regulation, including laws or rules, including those pertaining to securities, fraud, and occupational health and safety. As a general rule, California law protects employees who complain internally, such as to a supervisor, or externally, such as when they report concerns to a governmental agency. In many cases, the law protects the employee from retaliation, even if the employee is mistaken, so long as the employee acted in good faith and reasonably believed that a violation occurred.

Whistleblowers may want to obtain legal advice from a San Francisco employment lawyer before they “blow the whistle” so that they gain the protection of applicable whistleblower laws.

Examples of Retaliation

The most obvious example of retaliation is to fire an employee for engaging in protected activity. Other examples of retaliation may include:

  • Demoting the employee or denying a promotion
  • Reducing the employee’s pay or denying a raise
  • Reducing the employee’s hours
  • Giving the employee an unfavorable employment review
  • Disciplining or reprimanding the employee
  • Transferring the employee to a less desirable job, location, or shift
  • Increasing the level of supervision of the employee’s work
  • Taking responsibility away from the employee
  • Canceling contracts with the employee’s spouse or family members
  • Making the employee’s job more difficult (through scheduling, assigning dangerous work, etc.)

Keep in mind that not every adverse action gives rise to a claim for retaliation, and in some cases, an employer might have a legitimate reason to take any of the actions described above. The employer’s action, no matter how harmful it might be to the employee, is retaliatory only if it was motivated by the employee’s protected activity.

Distinguishing a legitimate business decision from a retaliatory act is not always easy. In most cases, retaliation has to be shown by circumstantial evidence, such as the timing between an employee’s protected activity and the employer’s adverse action. A San Francisco employment lawyer can help employees understand whether there is strong evidence that actions taken against them by their employers were retaliatory.

Seeking a Remedy for Retaliation

Laws that protect employees from retaliation generally set a time limit for taking legal action to seek a remedy after an employer retaliates. Sometimes those time limits are quite short.

An employment lawyer in San Francisco can help employees who believe they have been subjected to retaliation. The attorneys at Minnis & Smallets have years of experience handling retaliation cases. Appointments can be scheduled at our San Francisco office by calling 1-415-551-0885 or submitting our online contact form.