Retaliation

The Prevalence of Retaliation in the Workplace

We all understand retaliation. Someone tries to hurt you because you did something they did not like. It starts on the playground when we are young. Unfortunately, the desire to retaliate stays with many people when they reach adulthood, and it makes its way into our workplaces far more often than it should. A 2003 study noted by the Equal Employment Opportunity Commission (EEOC) in its 2016 report on harassment in the workplace determined that upwards of 75% of people who spoke out against workplace mistreatment faced some form of retaliation. While retaliation is wrong based on the disincentive it creates for employees to report workplace misconduct, it’s effect on the targets of the retaliation can be long-term and debilitating.

Retaliation Takes Many Forms

Retaliation looks and feels a lot like harassment. That is because harassment is one form of retaliation, and many times workplace retaliation can be attacked with both a legal claim of unlawful relation and workplace harassment. Retaliation can go much further than harassment, and it often involves what is called adverse employment actions, such as termination, demotions, refusals to promote or give raises and other serious negative actions. A co-worker or supervisor hell-bent on retaliating against an employee will often not stop until they achieve the ultimate revenge – loss of the employee’s job while visiting tremendous stress and pain on the target along the way.

Several Legal Theories Are Available to Attack Unlawful Workplace Retaliation

Almost every statute enacted to protect employees on both the state and federal level have provisions in the statute that gives the employee the right to sue the employer if the employer retaliates against the employee for invoking their rights under the statute. At the federal level those statutes include:

In California similar anti-retaliation provisions exist in protective statutes like the following:

The California Labor Code, including the Workers Compensation provisions therein
The Fair Employment and Housing Act
The California Family Rights Act
The Healthy Families Act (California’s paid sick leave law), and
Cal-OSHA

In addition to claims of retaliation for seeking the protection of these various statutes, there are laws that specifically protect employees for engaging in certain conduct that the legislature has determined to be legally protected. These laws give employees the right to sue their employer and often individual supervisors or others, if the employee faces retaliation for engaging in certain conduct. Just some examples of protected conduct include:

Disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has the authority to investigate, discover, or correct a violation where the employee reasonably believes that the information discloses a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. Labor Code §1102.5.
Refusing to participate in an activity that would result in a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. Labor Code §1102.5.
Engaging in lawful conduct asserting recognized constitutional rights that occurred during nonworking hours away from the employer’s premises. Labor Code §96(k)
Discussing the amount of the employee’s wages with others, or refusing to sign a waiver or other document that purports to require the employee to not disclose their wages to others. Labor Code §232(a) and (b).
Requesting lactation accommodation or attempting to express breast milk at work. Labor Code §1030-1033.
Complaining about workplace safety or health conditions or practices, or instituting or causing to be instituted any proceeding relating to the employee’s rights to safe and healthful working conditions, or testifying in any such proceeding. Labor Code §6310.
Refusing to perform work that would violate any occupational safety or health standard, or any safety order where the violation would create a real and apparent hazard to the employee or her or his co-workers. Labor Code §6311.

For additional statutorily protected conduct, look here.

In addition to the statute-based retaliation claims, there is a California court-created claim that employees can use in many cases of retaliation. Wrongful Termination in Violation of Public Policy is a claim that can be brought in court when an employee is terminated for a reason that is in violation of public policy. There is much more about this legal claim on our page specifically related to that claim. Specifically related to retaliation, the wrongful termination claim can be used to fight retaliation when the retaliatory motive violates a fundamental and long-standing public policy of California or the federal government.

The options available to an employee when they face retaliation are vast and diverse. Because of that, you would be well-served to figure out the best way to approach a retaliation claim with an experienced employment law attorney, like those at Pedersen Law, by your side.

Surprisingly, Not all Acts of Retaliation Are Unlawful

It comes as a surprise to many people that as evil and injurious as retaliation in the workplace may be, many acts of retaliation are not prohibited in the law, and therefore they can continue to exist without recourse. A co-worker or boss can aggressively and incessantly engage in retaliation, and if it is not considered unlawful retaliation, it can go on for as long as the attacker wishes. And worse, reporting retaliation that is not unlawful does not clothe the victim with protected status for reporting it, meaning you can be lawfully retaliated against for reporting retaliation to your boss or someone else in the company.

To determine what retaliation is unlawful, and what is not against the law, here are some basic rules:

Retaliation is unlawful if a statute says the conduct you engaged in was legally protected. See the several examples above and here.
Retaliation is unlawful if your conduct that led to the retaliation was reporting or complaining about violation of one of the many employee-protection statutes.
Retaliation is unlawful if the motive for the retaliation is considered to be in violation of a fundamental public policy of the state or federal government.

So, you may be wondering, what kind of retaliation is usually not unlawful? There are way too many examples to list here, but to illustrate the point, here are some acts you might engage in that would not give you legal protection:

Complaining about your boss’s management style, rudeness or communications skills
Complaining about unfair or unreasonable work goals or performance objectives
Complaining about your pay if you are being paid lawfully but you think you should be paid more
Reporting that your boss is not doing his job well, or is allowing nepotism or favoritism to influence his decision-making
Complaining about co-workers that are being rude, angry or who are not performing their jobs well, making you work harder

In short, any complaining or reporting of workplace conduct that is not protected as described above will likely not give you legal protection against retaliation.

Because knowing whether your actions will be legally-protected or not could be critically important to you, it makes great sense to consult with an experienced employment attorney, like those at Pedersen Law, before registering the complaint or reporting the workplace issue.

What Should I Do When Confronted with Workplace Retaliation?

When a co-worker or supervisor engages in retaliation, you should give the employer an opportunity to prevent further retaliation. If you do not place the employer on notice of the offending conduct, it will be hard, if not legally impossible, to hold the employer responsible for the retaliation you are facing. Almost all employers have some procedure in place to report retaliation. Use that procedure. If the person retaliating against you is your supervisor, go above his or her head in the chain of command. Many companies have a Human Resources Department. Report the conduct to that department.

When you do report, do so in writing. You want to make a very clear record of what you told the employer, so report either by email, or by a written document, and keep a copy for your records.

Also, it is important that you may need to remember sometime in the future what specifically was said and done. Therefore, it will be very helpful for you to keep a personal journal into which you put all of the information about the retaliation when it happens. Include specific words spoken, locations where it occurred, witness names and any other information you think you might want to remember in the future about the events. This journal will really help you when it comes time to later remember specifically what happened, when and who was involved.

Making a report of unlawful retaliation in the workplace is considered legally protected conduct. That means that if you in good faith make a report to the company that you believe you have been subjected to unlawful retaliation, any attempt to retaliate against you for making that report becomes a separate valuable legal claim. However, remember that if the retaliation is not considered unlawful, it would be lawful to retaliate against you for such a report. Therefore, if there is any question in your mind about whether the retaliation you are facing is unlawful, first consult with an experienced employment law attorney.

Shouldn’t I File a Complaint with the Government Right Away?

Most people at one time or another have heard of the EEOC and many believe the first thing that should be done if they face retaliation is to file a claim with the EEOC. For a California employee, that may not be the best, first thing to do. And in fact, for many forms of retaliation, reporting to a government agency will have no effect as the EEOC and DFEH do not handle many forms of workplace retaliation.

Deciding whether you need to file an administrative complaint, and if so with which entity, and then what to be included in the complaint, are all things that you should be doing with an experienced employment law attorney by your side. Therefore, the best first thing to do when you face unlawful workplace retaliation is to call an experienced employment law attorney, such as those at Pedersen Law, who can guide you through the process. We can help you decide if the retaliation is unlawful or not, whether an administrative complaint is needed or desired, and if so with which entity you should file and what should be included in the administrative complaint.

Watch your Deadlines or Lose Your Rights

Given that there are a large number of possible ways to attack retaliation, there are many different deadlines that may apply to your situation. Those deadlines can come as early as 6 months after the retaliation occurred if the employer was a government entity, or after a few years in some rare circumstances. You should assume your deadline is very short and not delay in finding competent counsel. If a government filing or administrative complaint is required, failure to do so on time will end your right to pursue a legal claim. Same is true if you miss a statute of limitations. You need to get solid advice about your deadlines and then keep close track of them because if you miss them, you lose your right to sue.

What can an Experienced Retaliation Litigation Attorney from Pedersen Law do For Me?

Litigating a retaliation case is complicated. The attorneys representing the employer often look to directly or indirectly intimidate the plaintiff into walking away from their valuable claims for little or no money. They know the dynamics. They know you are already tired, worn-down and damaged. They play on the fact that you do not want to face more retaliation in the form of a long, aggressive litigation with all of its discovery obligations and the need to re-tell the details of the story, over and over again.

When you sue a company for retaliation, it is like wounding a wild animal in a corner. The employer will come out fighting with passion. You need the insulation of experienced employment counsel to protect you as best you can be from this attack.

Furthermore, most employment cases involve getting a great deal of the most damning evidence from the employer and its employees. Artful discovery methods are critical to uncovering documents that exist. Experienced counsel is needed to procure the deposition testimony from employer-related witnesses that will formulate the backbone of your case.

What separates Pedersen Law attorneys from many other employment law firms out there? We have many years of experience with this law and we love to go to trial, and will never advise you settle a case to avoid going to trial. By having a reputation of being willing to try any case we take, you can benefit by the fact that eventually, the majority of employers will get serious about settlement, and the best settlements occur only once the employer knows it will have to face a jury.

If you believe you have suffered serious workplace retaliation in Southern California, contact us to discuss your case.

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