Employee Rights No Fees Unless We Win
Normally in California, employees have “at-will” relationships with their employers, meaning the employee can quit or voluntarily resign at any time and the employer can terminate the employment of an employee, without reason, at any time. “An employment, having no specified term, may be terminated at the will of either party on notice to the other.” California Labor Code section 2922.
However, an employer’s right to terminate the employment of an employee under California Labor Code section 2922 is not absolute. “Retaliation” is the term used when an employer unlawfully terminates or demotes or in any manner discriminates against an employee for having engaged in a protected activity such as complaining of discrimination or harassment. [Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 815. Retaliation is unlawful because in effect the employer is terminating or demoting or otherwise discriminating against the employee for engaging in an activity that the employee is entitled to do under the law. A determination that unlawful retaliation occurred hinges on whether the employer's stated reason for the discipline (i.e., that the employee was terminated for being untruthful during an investigation or for reasons such as poor work performance) was pretextual (a pretended reason for doing something that is used to hide the real reason) and if other evidence supports a reasoned inference that the termination or other disciplinary action was the product of discriminatory or retaliatory animus (ill will or an intense dislike, hatred, animosity, or hostility). Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1226.
Both federal and state antidiscrimination laws prohibit an employer from retaliating against an employee who reports or otherwise opposes prohibited discrimination or harassment. These include:
Retaliation under the Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, which protects job applicants, current and former employees alike. FEHA Retaliation
Retaliation under the federal Fair Labor Standards Act (FLSA), 29 United States Code section 201, et seq. FLSA Retaliation
Retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), 42 United States Code section 2000e, et seq., which protects job applicants, current and former employees alike. TITLE VII Retaliation
Retaliation under California Health and Safety Code section 1278.5, a health care whistleblower statute that prohibits a health care facility from retaliating against an employee for complaining about the quality of care or services provided by the facility. Healthcare Worker Retaliation Lawyer
Retaliation under California Labor Code section 132a, which prohibits discrimination against an employee who has filed or made known his or her intent to file a workers' compensation claim because he or she was injured at work due to injury or illness. Injury Retaliation Lawyer
There are many other California laws that prohibit retaliation against employees and job applicants. Below is a list of just a few of those laws:
California Labor Code section 98.6 prohibits employers from retaliating against an employee or job applicant for, among other things, filing a bona fide complaint or claim or instituting a proceeding relating to his or her rights that are under the jurisdiction of the Labor Commissioner or making an oral or written complaint that he or she is owed unpaid wages.
California Labor Code section 230(a) prohibits employers from retaliating against an employee “for taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives reasonable notice to the employer that the employee is required to serve.”
California Labor Code section 230(b) prohibits employers from retaliating against an employee who is a victim of a crime, for taking time off to give witness testimony while appearing “in court to comply with a subpoena or other court order as a witness in any judicial proceeding.”
California Labor Code section 230(c)-(f) prohibits employers from retaliating against, and requires employers to reasonably accommodate, an employee who is a victim of a crime or violence or because of his or her status as a victim of a crime or violence, this includes victims of domestic violence.
California Labor Code section 230.1 prohibits employers with 25 or more employees from retaliating against, and requires employers to reasonably accommodate, an employee who is a victim of a crime or violence that caused physical and psychological injury or the threat of physical injury, who takes time off work to seek:
- Medical attention for injuries caused by crime or abuse;
- Services from a domestic violence shelter, rape crisis center, or victim services organization or agency;
- Psychological counseling or mental health services for crime or abuse victims;
- Safety planning and other actions taken to increase safety from future crime or abuse, including relocation.
California Labor Code section 230.2 prohibits employers from retaliating against an employee for exercising his or her right to attend judicial proceedings related to a crime wherein the employee or an immediate family member was a victim of that crime.
California Labor Code section 230.3 prohibits employers from retaliating against employees for exercising their right to take time off to perform emergency duty as volunteer firefighters, reserve peace officers, and emergency rescue personnel. The term “emergency rescue personnel” includes a person who is an officer, employee, or member of a fire department or fire protection or firefighting agency, sheriff’s department, police department, or a private fire department, or of a disaster medical response entity sponsored or requested by the State of California.
California Labor Code section 230.4 prohibits employers employing 50 or more employees from retaliating against an employee who is a volunteer firefighter, a reserve peace officer, or emergency rescue personnel from taking time off to engage in fire, law enforcement, or emergency rescue training.
California Labor Code section 230.5 prohibits employers from retaliating against an employee who is a victim of one of several enumerated violent crimes (including felony domestic violence and felony driving under the influence causing injury) for taking time off to appear at a court proceeding related to the violent crime.
California Labor Code section 230.7 prohibits employers from retaliating against an employee, who is the parent or guardian of a pupil who has been suspended by a teacher, for taking time off to go to the school of the pupil and attend a portion of a school day in the classroom of his or her child or ward.
California Labor Code section 230.8 prohibits employers employing 25 or more employees from retaliating against an employee, who is the parent of a child attending school, for taking off up to 40 hours each year (but not more than 8 hours in any calendar month) to, among other things, participate in school activities or to enroll his or her child in school.
Retaliation claims sometimes end up going to trial even when the employee's primary claims (such as discrimination, harassment, or failure to provide leave under the California Family Rights Act (CFRA)) are dismissed. “It sometimes happens — more frequently than might be imagined — that an employee whose primary claim of discrimination cannot survive pre-trial dispositive motions is able to take to trial the secondary claim that he or she was fired or adversely affected in retaliation for asserting the primary claim.” Quinn v. Green Tree Credit Corp. (2nd Cir. 1998) 159 F.3d 759, 762.
To establish a prima facie case (facts legally sufficient to establish a case unless disproved), the employee or job applicant must show that:
- He or she was engaged in a protected activity (e.g. complaining of workplace sexual harassment);
- The employer subjected the employee or job applicant to an adverse employment action (e.g. termination of employment or a demotion); and
- A causal link exists between the protected activity and the employer's action (e.g. a temporal relationship, the employer terminated the employee soon after she or he complained of workplace sexual harassment.) Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1533,