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Retaliation

California has multiple retaliation laws that employees can use to hold their employers accountable. Our favorite retaliation laws are the Fair Employment & Housing Act (California Government Code section 12900 through section 12996) and the Whistleblower Protection Act (California Labor Code section 1102.5).

Retaliation often occurs after someone reports what they reasonably believe to be illegal conduct. Sometimes it happens after someone participates in a process, such as providing witness testimony to a sexual harassment allegation. Retaliation is common when someone refuses to follow an illegal directive. The following examples illustrate these basic principles.

Example 1 – Retaliation for Reporting Illegal Activity: Female employee works in a local bar in the Mission District in San Francisco, California. Almost every night for the past three months, the male bar manager comes in and gives her an inappropriately long and tight hug. One night, while they are closing the bar, manager pulls her into his body and says, “let’s take this to my place after we close up.” Bartender reports the manager’s actions to the bar owner. Owner terminates bartender one week later, claiming that she was late on two occasions in the past, and that she is no longer a “good fit” for the job. Employee has a strong retaliation claim and would likely be entitled to lost wages and benefits, as well as emotional distress damages.

Example 2 – Retaliation for Participating in a Process: Employee works in a technology company in downtown Oakland, California. The company delivers computer engineering services for local businesses. One employee, a gay, female computer engineer, regularly hears inappropriate comments about women, and other people in the LGBTQ community, among the mostly young, heterosexual, white male staff. She reports the offensive commentary to human resources, and lists another young, homosexual male as a witness to what has been said. Male witness participates in interviews and gives witness testimony about a manager’s offensive conduct. Manager puts male witness on a performance improvement plan. Manager reprimands witness once then terminates witness. Witness would likely have a case for retaliation and possibly be entitled to lost wages, benefits, and emotional distress damages for testifying on behalf of the female employee who filed the original complaint.

Example 3 – Retaliation for Refusing to Follow an Illegal Directive: Employee works as a nurse in a nursing home in Berkeley, California. One of the nursing home protocols is to rotate and wash immobile patients in order to clean them and prevent bed sores. Nurses are told to record this work for future reference daily. During abnormally busy week, the nurses forget to rotate and wash a patient one day. The staff supervisor reviews the records and sees that the daily rotation and washing was not recorded. Supervisor instructs nurse to write in the notes that nurse personally rotated and washed the patient, even though she did not do so on that particular day. Nurse refuses to falsify records. Supervisor reprimands nurse for insubordination. Over the next few weeks, supervisor continues to berate nurse for menial matters which in the past were never an issue. Supervisor terminates nurse a few weeks later. Nurse may have a case of retaliation for refusing to follow a directive which she reasonable believed to be illegal.

Note: An employee does not need to be “correct” about whether the conduct they observe is illegal. Nor do they have to be correct about whether the directive they refused to follow was an illegal order. The employee need only have a reasonable belief of illegality.

People report illegality, file reports, and blow the whistle on a range of issues, including but not limited to discrimination, harassment, fraud, embezzlement, or unsafe and/or dangerous conditions. An employee might contact law enforcement, such as the police, or a governmental agency, such as the Occupational Safety and Health Administration (OSHA), and report what they have seen.

Retaliation can also occur when an employee engages in the protected activity of disclosing a medical condition or requesting a reasonable accommodation for a disability. For more on this topic, please see our web articles about disability discrimination. We have been through all these scenarios before with our clients in Oakland and San Francisco, California. Trust us to lead you through your employment law options, and either stop the retaliation from continuing, or obtain damages for past actions that led to lost wages, lost benefits, and emotional distress.

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