Retaliation is a common issue in the workplace. If you did something legal, but your employer didn’t like it, they might take it out on you through all kinds of adverse employment decisions. These various forms of retaliation can often allow you to bring an employment law case and seek damages for the wrongs you suffered.
Some of the most common retaliatory actions involve pay cuts, reduced hours, transfers, and firings. These happen as revenge for all kinds of improper reasons, such as reporting something illegal in the workplace, filing a claim against your employer, or taking advantage of other rights.
Call Liane Ly Law’s Los Angeles, CA employment retaliation lawyers today at (310) 984-7156.
What is Retaliation in Employment?
Retaliation occurs when an employer takes adverse actions against you for something legal that you did. This does not have to mean they fired you, as all sorts of adverse employment actions short of firing might also be used to retaliate against a worker.
Retaliation is illegal because it limits your freedom to do those legal things if you know your employer is going to punish you for them.
What is At-Will Employment?
The system of at-will employment has a big impact on retaliation cases:
No Reason Needed
In an at-will state, an employer does not need a reason to fire you. This leads to many workers being fired after they did something, and not being sure whether it was retaliation or it just happened to line up with their actions.
California Uses At-Will Laws
In California, we use at-will laws, but we have robust protections to cut down on random and retaliatory firings.
Illegal Reasons Not Allowed
In an at-will state, you still cannot be fired for illegal reasons, such as discrimination. Retaliation is also an illegal reason.
Even when they give a pretextual “legal” cause for firing you, if it seems like it might be retaliation, it is still potentially illegal under at-will employment laws.
Things That Can Trigger Retaliation
Retaliatory actions by an employer are often triggered by these kinds of legal actions on the worker’s end:
Reporting Discrimination
When an employee reports discrimination – whether against themselves or someone else – employers often see it as a liability. Rather than following the law, they might come up with some excuse to fire the worker to make the report of the issue go away, which obviously does nothing to actually stop the underlying discrimination.
Reporting Harassment
The same is true of harassment. Employers often see the risk of a racial or sexual harassment claim as somehow riskier than the retaliation lawsuit they invite upon themselves by punishing someone for reporting harassment.
Reporting Crimes
Employers and supervisors involved in illegal activity often try to punish people who come forward, in an attempt to protect themselves from criminal charges. If you find out about illegal activity in the workplace, you might feel legally or morally obligated to report it, and that should not be punished.
Reporting Regulatory Violations
The same is true of regulatory violations. Although your employer might not face jail, fines are still possible for regulatory violations. Businesses might do more than they are legally able to to sweep violations under the rug.
Reporting Health and Safety Violations
Health and safety violations are often expensive to fix, and businesses might see “getting rid of” a worker as a simpler way to make the problem “go away.”
In reality, all this does is open them to a retaliation lawsuit and potentially expose them to liability, fines, and regulatory intervention for health and safety violations in the workplace.
Whistleblower Activity
Some of these things already discussed constitute “whistleblower” activity. Whistleblowers often get enhanced protections under the law, especially when reporting to the authorities (the police, government agencies, etc.).
In many cases, whistleblower protections even apply if you made a good-faith report but were mistaken or were missing information. As long as you are perceived as a whistleblower, you should be protected.
Disclosing Information About Yourself
Workers are allowed to be who they are under California employment law, but many workers find increased scrutiny, cut hours, cut pay, or being passed over for promotions after they reveal something about themselves to coworkers or supervisors.
This often counts as discrimination rather than actual retaliation if you suffered adverse employment actions after coming out about your
- Sexual orientation
- Trans status
- Past reproductive health decisions
- Health conditions
- Disabilities
- Country of origin
- And other disclosures.
Filing a Claim Against Your Employer
There are all kinds of legal actions you may be entitled to take against your employer, and they should not try to make your life miserable or fire you in retaliation for standing on your rights.
For example, employers might try to retaliate after you file a claim for sexual harassment or discrimination, improper wages, unpaid overtime, or even after filing something as routine as a Workers’ Compensation claim for a workplace injury.
Political Activity
Political activity in the workplace can be limited, but there are laws against an employer interfering with your ability to run for office, make political statements, or engage in political activity outside of the workplace.
If your employer retaliated against you for your politics, it may be illegal.
Labor Organizing
State and federal laws allow employees to take collective action and work toward unionization or other labor organizing. This makes it illegal for an employer to retaliate against you for
- Discussing wages with coworkers
- Discussing unionization
- Voting for unionization
- Joining a labor union
- Educating coworkers about labor organizing
How Do You Prove Retaliation?
To prove that you were retaliated against, your Los Angeles, CA employment lawyers need to help you find the following proof:
Evidence of Retaliation
Explicit evidence of retaliatory intent might be hard to come by, but it can really help. For example, if you were told that something you did – something perfectly legal – was unacceptable, and then you were fired for it, that highlights their intent.
Employers rarely come out and admit they did something illegal on purpose, so evidence is generally circumstantial instead of direct. However, “circumstantial” does not mean “weak”; it just means it is evidence of the circumstances surrounding the issue rather than direct proof.
Communication Records Are Helpful
Communications such as emails or verbal reports of what was said in a closed-door conversation can be essential proof of retaliatory intent. For example, if one of your supervisors was told to “keep a close eye on” you because of something you did, that shows the increased scrutiny was retaliatory.
Save any emails you have access to and give them to your lawyer. We may even be able to flip witnesses and coworkers to have them testify against your employer about what they knew.
Timing
Sometimes the best evidence that adverse employment decisions were retaliatory is the suspicious timing.
For example, if you worked for years with no tardiness or insubordination reports, then you reported sexual harassment, and you were suddenly slapped with tardy reports, put on a performance improvement plan, and then fired, it becomes quite clear that all of these penalties only came about because of the harassment report.
What if they Gave a Reason for the Termination?
Employers will often try to find some legal excuse rather than firing you for an illegal reason.
Typical Situation
Usually, the employee takes whatever legal action is in question (political activity, labor organizing, filing a claim), and then the employer puts increased scrutiny and pressure on the worker until they come up with grounds for firing them or otherwise punishing them.
Pretext Not Allowed
A pretextual reason that is used just to cover for illegal reasons for adverse employment actions does not make the action legal. Pretextual excuses might be harder to overcome, but they do not make retaliatory intent or other animus legal.
Proving Pretextual Excuses
As mentioned, communications and circumstantial evidence can go a long way toward proving that a pretextual excuse was merely pretextual. If we can provide evidence of the true intent, our California employment lawyers can help you win your claim for retaliation.
What Actions Constitute Retaliation?
Any adverse employment action can constitute retaliation if it is done for retaliatory reasons.
What “Adverse” Encompasses
The phrase “adverse employment action” typically covers things that are obviously bad or involve some kind of penalty – such as termination or pay cuts. However, the recent Supreme Court decision in Muldrow v. St. Louis (2024) clarified that something like a transfer can still be considered adverse, even if it does not reduce pay or cause hardship.
Pay Cuts/Docking Pay
Taking away someone’s income or reducing their income is typically only done for serious issues at work, and it is often illegal on its own because employees are entitled to the wages they earned. If this is done to punish you for something you were allowed to do, it can be a clear case of retaliation.
Reduced Hours
Many employers think that they can avoid accusations of retaliation as long as they do not fire a worker. This often results in reduced hours – or simply not scheduling the worker – as punishment.
This is still an adverse employment action and can constitute retaliation just like termination or pay cuts can.
Transfers
As explained in the Muldrow case, transferring someone can qualify as retaliation. If you are moved to a more dangerous work location or the job site is further from your house or more expensive to travel to, that kind of hardship makes this clearly an “adverse” decision against you. However, even without hardship, Muldrow says transfers can still be considered “adverse” action.
Lost Responsibilities
Giving employees responsibilities is often seen as a sign of trust. Taking them away is a sign of the opposite. If an employer takes away power and responsibility as retaliation, that can qualify for a lawsuit.
Additional Responsibilities
On the other hand, piling on responsibilities can also be seen as punishment. For example, requiring an employee to come in early to open, to stay late to close, or to perform additional paperwork and filings may be a punishment in and of itself.
In other cases, it could be used as a pretext for eventual firing. Employers may pile on the work, hoping the worker fails to keep up, giving them a “legitimate” excuse to fire them down the line.
Performance Improvement Plans (PIP)
Being put on a PIP is not, itself, necessarily a penalty or retaliatory action. In many cases, the increased scrutiny of a performance improvement plan may result in eventual firing, and this attention could constitute an additional hardship or adverse action. But you should check with a lawyer about your specific PIP and the terms of it to see if it qualifies as a retaliatory action or not.
Firing/Termination
Nothing gets more “adverse” as far as employment decisions go than actually firing you from your job. This is the classic example of retaliation, and wrongful termination claims are often based on retaliation.
Forcing You to Quit
Creating worse and worse situations for you until you are forced to quit can also be considered part of retaliation, even though your quitting is not the employer’s decision. This practice may be common in some industries or work cultures, but it can often constitute retaliation when it is done for a bad purpose, e.g., harassment.
In many cases, this can be considered “constructive dismissal” or “constructive discharge,” which allows you to file a wrongful termination claim without being literally “fired.”
How Long Do You Have to File a Claim for Retaliation?
The deadline to file your claim might depend on the actual conduct on your employer’s end and the reason for the retaliation. Filing deadlines often range from 1 to 4 years, but you should talk to a lawyer quickly, in case you have a deadline on the shorter end.
Call Our California Employment Lawyers for Help Today
If you faced retaliation in the workplace, call Liane Ly Law’s Orange County, CA employment attorneys at (310) 984-7156.