California retaliation laws were designed to protect employees who take a stand in the work place and fight for what is right. A retaliation attorney represents employees who get fired for doing the right thing. This includes workers who oppose unlawful company conduct, file a complaint against their boss, or testify against the company in a legal proceeding.
California law provides relief when an employer retaliates against an employee. An employer ‘retaliates’ against an employee when the employer fires, demotes, lays-off, or does something that adversely affects the terms and conditions of the employee’s job because the employee opposed, reported, or complained about any forbidden practices under California law.
The goal of this page is to:
- Answer common questions employees have about retaliation,
- Detail California law without using legalese or fancy lawyer-talk,
- Help you decide if you need to contact a retaliation attorney, and
- Explore how much money a retaliation lawsuit might be worth.
This page was created by Branigan Robertson, a retaliation attorney in California. If you’re an honest person, and you believe you are a victim of retaliation, contact Branigan’s office as soon as possible for a free consultation.
How to Use This Page
This page is separated into Chapters. At a minimum, Mr. Robertson recommends that you watch the videos on this page. In each video, Mr. Robertson explains the important parts of California’s retaliation law. This is the stuff that you absolutely need to know.
The text of each Chapter goes into deeper detail. This is where you’ll find answers to very specific questions. To make it extra special, every section is filled with footnotes that link to the relevant legal authority (if you’re the type of person who likes to read footnotes…).
For your convenience, the Table of Contents is linked to the Chapters below. That way you can quickly hyperlink down to whatever area of this page applies to you.
Retaliation Table of Contents
- Chapter 1 – Overview of Retaliation Law in California – The Basics
- Chapter 2 – Company Actions that are Considered Retaliation
- Sub-Chapter 2.1 – When You Refuse to Violate the Law or Report a Violation of Law
- Sub-Chapter 2.2 – When You Oppose Unlawful Discrimination or Harassment
- Chapter 3 – How Do You Prove Retaliation?
- Chapter 4 – How Can You Prevent Retaliation from Happening?
- Chapter 5 – When Should You Call a Lawyer?
- Chapter 6 – What is the Statute of Limitations in a Retaliation Case?
- Chapter 7 – What Should You Tell a Lawyer When You Describe Your Case?
- Chapter 8 – What Do Attorney’s Charge in Retaliation Cases?
- Chapter 9 – What are the Stages of a Retaliation Lawsuit?
- Chapter 10 – The Monetary Value of Retaliation Cases
- Chapter 11 – About Branigan Robertson
- Chapter 12 – Watch Out for These Types of Lawyers
- Chapter 13 – Why Can’t You Find a Lawyer to Take Your Case?
- Chapter 14 – What if You are an Immigrant?
Chapter 1 – Overview of Retaliation Law in California – The Basics
If you would rather watch the video on YouTube, click here.
Not all retaliation is created equal. Here is a non-legal definition of retaliation – “Harming someone because they harmed you.”
In the workplace, most people think retaliation only entails an employee reporting or complaining about something, and, in response, that employee’s supervisor starts cutting hours, blocking the person’s advancement, or finding a fake reason for terminating them.
While this definitely seems unjust, not all workplace retaliation is unlawful. Our office gets calls from people on a daily basis who complained about something, got “retaliated” against, but don’t have a case.
To truly understand why that is, it helps to first take a moment to understand one fundamental thing:
There is a significant difference between things that are unfair and things that are illegal.Branigan Robertson
With that preface out of the way, you are probably asking yourself the next logical question, “So, what kinds of retaliation are illegal?”
At its most basic level, California’s retaliation law prohibits employers from taking an adverse action against an employee because he or she engaged in a protected activity.
Protected activities are identified and put into law by California’s congress and court system. What are these special “protected” activities and where can you find them?
This webpage details most, if not all, of the protected activities in California. The entire list can be found in Chapter 2. For purposes of this introductory chapter, here is a quick overview list. Employers may not reprimand, demote, or terminate an employee because:
- The employee refused to violate a law (or complained that someone at work was violating a law)1,
- The employee opposed unlawful harassment or discrimination2,
- The employee complained about an unsafe working environment3,
- The employee complained about not getting paid proper wages4,
- The employee complained about patient safety (if he or she works in a health care organization)5,
- The employee requested a reasonable accommodation for a disability6, and
- Many more reasons… (see Chapter 2).
On the other hand, it is perfectly legal for companies to retaliate against someone if:
- Your boss doesn’t like your work product,
- You complained about something unprotected (e.g. being micro-managed, unrealistic expectations, unreasonable sales goals, annoying co-workers, bad company leadership, etc.)
- You report something to HR that is not protected (e.g. singled out because you don’t have a college degree, being set up to fail because you don’t go golfing with the team, not getting promoted because the boss promoted his son or daughter over you, etc.)
In its simplest form, unlawful retaliation is motivated by an activity you took that is protected by law.
Your Employment Status Matters
It is extremely important to look at unlawful retaliation within the context of where you are right now. If you are still employed, generally a lawyer will give you different advice. If the retaliation you experienced resulted in you getting fired, generally a lawyer will approach your situation completely different. Let’s quickly examine both situations:
If You Are Still Employed
- Be proactive and start exceeding all the expectations for your job. It’s very difficult for a company to justify firing an employee that is highly effective and provides extraordinary value to the company.
- Complain in writing to the appropriate person (but do this respectfully). If you believe it will be productive, write a polite and non-accusatory complaint, and send it to whomever is appropriate in your organization. This “complaint” should be helpful, constructive, and provide reasonable solutions. It is generally not helpful to simply point the finger and blame the bad guy. Mr. Robertson has made a video on this exact topic.
- Unless extreme circumstances exist, Mr. Robertson generally recommends that people wait to call a lawyer until afterthey are fired. If you want to stay at the company, threatening legal action usually seals your fate, and is generally an unproductive solution. There are exceptions to this. Moreover, if you are still employed, usually you will not be able to find a good lawyer to take your case on contingency. But you can find out if you are willing to pay the attorney out of pocket (but this gets expensive and is out of reach for most average folks).
If You Were Fired
If you can prove that your employer fired you because you engaged in a protected activity, then you may have solid grounds to pursue a case. This might formally be classified as a wrongful termination case, but we are going to examine it as retaliation here.
Why would you want to pursue a lawsuit? If you win a retaliation case, the employer may be forced to pay your lost wages and bonuses (back-pay),7 future lost wages (front-pay),8 emotional distress damages,9 and punitive damages.10
When you are terminated for a protected reason, obviously, the company doesn’t admit that fact. They usually give a fake reason, like “bad attitude,” “tardiness,” or “poor performance.” This fake reason might even have some truth to it, however, if it wasn’t the real motivating reason for firing you, then you should still prevail.
This fake reason is called a pretext. Your lawyer will have to prove that this fake reason is a lie (the lie is the pretext), and the real reason for the retaliation is because you engaged in a protected activity. To learn more about how a pretext plays out in employment lawsuits, visit our pretext termination page.
Chapter 1 – Conclusion
The rest of this webpage details every important aspect that you should evaluate and consider when it comes to retaliation. Mr. Robertson has gone to extensive efforts to identify and explain almost every major consideration you should look at before taking action.
If you have been fired and would like to have an experienced retaliation lawyer evaluate your case, Branigan’s office would be honored to provide you with a free consultation.
Chapter 2 – Company Actions that are Considered Retaliation
As detailed in Chapter 1, California’s retaliation law prohibits companies from taking an adverse action against an employee because he or she engaged in a protected activity. On the other hand, employers are allowed to retaliate against an employee if he or she did not engage in a protected activity. This Chapter identifies almost all of the protected activities in California.
Before we begin listing the activities, you must understand that you will have to prove that the company retaliated against you because you took one of the below protected activities. To win a retaliation lawsuit, your lawyer will have to establish a connection between your protected activity and the retaliation.11
For example, let’s pretend that you complained about an unsafe work environment and then the company put you on a performance improvement plan (PIP). Shortly thereafter you were fired. At first it may look like you were put on a PIP because of your complaint. But if your employer can prove they actually put you on the PIP because your sales numbers were in the toilet, and did the exact same thing for other employees in the past, then you’re probably not going to win your case.
There are five categories of actions that may constitute unlawful retaliation:
- Sub-Chapter 2.1 – When You Refuse to Violate the Law or Report a Violation of Law
- Sub-Chapter 2.2 – When You Opposed Unlawful Discrimination or Harassment
- Sub-Chapter 2.3 – When You Report an Unsafe Working Environment
- Sub-Chapter 2.4 – When You Complain About Wages or Hours
- Sub-Chapter 2.5 – When You Request a Leave of Absence or Reasonable Accommodation
- Sub-Chapter 2.6 – Other Activities That May Constitute Retaliation
Sub-Chapter 2.1 – When You Refuse to Violate the Law or Report a Violation of Law
- Companies are not allowed to retaliate against you for reporting a violation of state or federal law to an internal person within the company who has authority over you (i.e. your supervisor, management, or HR),12
- Employers may not retaliate against you for refusing to participate in any activity that would violate the law, or a local, state or federal rule or regulation,13 and
- Corporations may not retaliate against you for disclosing to the government or a law enforcement agency that your company has violated or failed to comply with a state or federal statute, rule, or regulation.14
This one statute forms the basis for a sizeable chunk of all retaliation claims in California. Lawyers like Mr. Robertson use this law multiple times a year in their cases. Let’s look at some examples of how this can play out:
- Let’s say you work for a home construction company, and you found out your company submitted falsified paperwork to pass an environmental regulation for its latest tract development. If you send an email to management saying that this regulation was being broken, and then you were fired, you would have a case for retaliation.
- Let’s say you work at a school, and you found out that the principal was not complying with state law regarding student-teacher ratios. If you made a verbal complaint to the school district, and then the principal reprimanded you, that would be a classic case for retaliation. In an of itself, however, this would not be something you would file a lawsuit over. If you still have your job, there is little economic reason to sue unless extraordinary circumstances exist. But you could hire a lawyer to send a letter to the district.
- Let’s say you work in billing for a health care organization. You found out that a co-worker was submitting fraudulent bills to Medicare for reimbursement. Upset by this dishonesty, you sent a report to the fraud department at Medicare, which did an investigation, and then slapped your company with a fine. If your company later found that you were the person who reported them, and demoted you down to secretary, you would have a claim for retaliation.
Sub-Chapter 2.2 – When You Opposed Unlawful Discrimination or Harassment
Everybody knows that it’s unlawful for companies to discriminate or fire an employee because of their race, religion, gender, age, disability, etc. However, it is also unlawful to retaliate against someone for simply opposing unlawful discrimination or harassment. Specifically, the law says:
“It is an unlawful employment practice… (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”15California Government Code §12940(h)
“Under this part” simply refers to the rest of that law which says it’s unlawful to discriminate or harass someone because of their race, religion, age, gender, sex, pregnancy, disability, ethnicity, national origin, sexual orientation, national origin, military, or veteran status.
Let’s look at some examples of how this can play out:
- Let’s say that you feel that your boss is sexually harassing you. He keeps asking you out on dates, commenting on the clothes you wear, and texting you on your personal cell phone. Eventually, you send him a polite email that basically says Hey, I feel like you’re harassing me, please stop. Suddenly, he writes you up for something frivolous and three weeks later you get fired for having a “bad attitude.” If you can prove that the write-up and termination were substantially motivated by your email, you would have a case for retaliation.
- Let’s say that you have a co-worker who is the only Indian guy at the company, and the company is predominately Caucasian. He does a great job, but your supervisor always seems to exclude him from lunches, meetings, and high-value assignments. One day, you overhear your boss saying, “I don’t trust Indians, they have no loyalty.” Upset, you send a polite email to HR saying that you believe your co-worker is being excluded because of his ethnicity and national origin. Two weeks later, you suddenly stop getting invited to lunches, meetings, and your boss gives you all of the terrible assignments. In this scenario, you would be the victim of retaliation (so long as you could prove that your complaint was the reason for the exclusion). However, unless you get fired, this wouldn’t be something that you would sue over because the retaliation has not risen to a level that makes a lawsuit economical for you or the lawyer.
- Let’s say you are in a car accident over the weekend and your ankle is broken. Your doctor has advised, “No air travel for two weeks.” Unfortunately, next week is a big conference on the East Coast. When you crutch into work a few days later you send your boss the doctor’s note and request a temporary accommodation of no air travel. While the conference is important, it’s not that important and there are several suitable replacements for you. Your boss refuses your accommodation and threatens you, “If you don’t go you’ll be fired.” After this threat, you file a complaint with HR about the threat, but two days later HR calls you into a meeting, terminates you, and presents you with a severance package. In this situation, you might have a great case for retaliation (so long as you don’t sign the severance package…).
Sub-Chapter 2.3 – When You Report an Unsafe Working Environment
It is absolutely unlawful for a company to retaliate against a worker because the worker complained about an unsafe workplace.16 This can include complaints about unstable co-workers, tripping hazards, dangerous wires or machines, chemical contamination, defective tools, and many other scenarios.
It is also unlawful to retaliate against an employee who refuses to perform work if the performance of that work would violate any safety or health standard and the violation would create a real and apparent hazard to the employee or his or her co-workers.17
Along the same lines, it is against the law for a company to pre-emptively retaliate against an employee because his boss fears the worker will complain about safety violations in the future.18 Moreover, the complaint doesn’t have to be about your safety, or your particular office, it can be regarding the safety of others or other offices within your company.
Workplace Safety for Employees (Video Series)
It is also unlawful for your employer to retaliate against you because you complained about patient safety.19 This law primarily applies to individuals who work in health care environments like hospitals or in-patient facilities. This law is meant to encourage doctors, nurses, physician assistants, and other health care workers to keep the safety of their patients their top priority.
California law also protects an employee who refuses to lift, reposition, or transfer a patient due to the health care worker’s concerns about patient or worker safety.20
Child Day Care Facilities
It is unlawful to retaliate against an employee who:
- Complains about staff-child ratios,
- Complains about child transportation,
- Complains about child abuse,
- Refuses to perform work in violation of a licensing or other law or regulation after notifying the employer about the violation, or
- Complains about the violation of any licensing or other law relating to child day care facilities.21
A claim under this law must be presented to the employer within 45 days of the action and presented to the DLSE not later than 90 days. Due to an odd jurisdictional rule, this type of action cannot be brought in court with a private lawyer like Mr. Robertson, you have to use the remedy provisions set up in the statute.
What about workers’ compensation? It is against the law for a company to retaliate against an employee because that employee filed a workers’ compensation claim.22 This law identifies several penalties that may be put on employers who retaliate against injured workers, including wage reimbursement, reinstatement, and increased workers’ compensation payments.
However, due to an inconvenient jurisdictional rule, you usually can’t sue for retaliation in Civil Court with an employment lawyer like Mr. Robertson because the Workers’ Compensation Appeals Board (WCAB) has exclusive jurisdiction to hear claims under CA Labor Code § 132a.23 Therefore, you would need to talk to a workers’ compensation attorney. But you may still be able to pursue a disability discrimination lawsuit, which offers workers outstanding legal remedies under California law.
Sub-Chapter 2.4 – When You Complain About Wages or Hours
Generally, it is unlawful for an employer to retaliate against you or terminate you because you complained about not being paid all your lawfully earned wages or commissions.24 Moreover, it is unlawful to fire someone to avoid paying them their earned wages or commissions.25 You can file suit for retaliation if your employer fires you in order to avoid paying you, or if the company retaliates against you because you complained to your supervisor that you have not been paid everything that you are owed.
Filing a Complaint with the Labor Board for Unpaid Wages
When employees are not paid their full wages, they can file a claim with the Department of Labor Standards Enforcement (also known as the “DLSE,” “Labor Board,” or “Labor Commissioner”). The Labor Commissioner usually investigates the complaint and tries to facilitate a resolution.26 However, if the employer retaliates and terminates the employee for filing the complaint, they can be sued for retaliation.27
Disclosing the Amount of Your Wages to Another Employee
Some companies do not want you to tell your co-workers how much you are getting paid. Companies believe it will make it harder to pay employees less if everyone knows what everyone else is earning. In California, it is against the law for an employer to retaliate against you for disclosing how much money you earn.28
Not only that, but it is also against the law for an employer to make a rule that prohibits disclosure, or require, as a condition of employment, that an employee keep their wages confidential.29
Suing Your Employer for Civil Penalties for Failing to Pay Wages to You and Other Employees
It is unlawful for an employer to terminate an employee because he or she is suing the employer in a civil action for civil wage penalties under California’s Private Attorney’s General Act (PAGA).30 This is a law where you sue on behalf of your co-workers (similar to a class action) to recover civil wage penalties that would go to the government.
Sub-Chapter 2.5 – When You Request a Leave of Absence or Reasonable Accommodation
It is not uncommon for retaliation lawyers like Mr. Robertson to hear that an employer is punishing an employee for taking a leave of absence. Similarly, we often hear that employees who are temporarily disabled get punished for it. Let’s examine these two situations in turn.
Taking a Protected Leave of Absence
In many situations, California grants employees the right to take a protected leave of absence from work. If protected, the employee can leave the job for a few weeks or months and the employer must hold their position and allow them to return to work.
The most common types of leave of absence are for maternity leave or serious disabilities. When a woman has a child, she can usually take a 12 week leave of absence. At the end of this period of time, her employer is legally required to allow her to return to work. This time away from work is unpaid (however, if you apply, California will pay a portion of your paycheck in the form of disability benefits). The female is not required to perform any job tasks or duties while she is on her leave of absence.
Obviously, from your boss’ perspective, your absence from the jobsite for several months can disrupt his or her objectives and work-flow. Some unscrupulous supervisors retaliate against pregnant or disabled workers by hiring someone else to do the job. They also frequently stick the person in a dead-end position with no responsibility or upward mobility. Sometimes they even discipline the person and terminate them. However, if all the legal boxes are checked, this is a violation of CA’s retaliation law.31
Employers may not retaliate against an employee for taking a leave of absence under the Family & Medical Leave Act (FMLA).32 The same applies to employees utilizing the California Family Rights Act (CFRA).33 In brief, if you properly notify your employer that you are taking a leave of absence for any of the reasons protected by either of these two laws, and you’re retaliated against because of it, you may want to file a lawsuit.
What types of leave of absences are we talking about?
- Leave because the employee is going to give birth to a child.
- Leave to care for the serious health condition of a child of the employee.
- Leave to care for a parent or a spouse who has a serious health condition.
- Leave because of the employee’s own serious health condition that makes the employee unable to perform the essential functions of his or her job.
If you want to know more about leave of absence laws, click here.
Requesting a Reasonable Accommodation
CA law also permits disabled employees who cannot perform the essential functions of the job to request a “reasonable accommodation” so that they can do the job. Sometimes this is an inconvenience for the employer, who would rather fire the disabled worker, and invest in someone who isn’t disabled. This would violate CA’s law against refusing to reasonably accommodate an employee’s disability.34
If you want to know more about reasonable accommodations, click here.
Sub-Chapter 2.6 – Other Activities That May Constitute Retaliation
There are many more reasons why employers cannot retaliate against employees:
Whistleblowing – Reporting Unlawful Company Activity to a Government Agency
It is unlawful in California for an employer to fire an employee because he or she blew the whistle and reported violations of law to a government or law enforcement agency.37 This also applies to employees who provide information to any public body conducting an investigation, hearing, or inquiry. The law also covers employees who are subpoenaed by a public agency.38
Whistleblowing – Reporting Fraudulent Bills to the Government
As we detailed above, it is unlawful to retaliate and terminate an employee because he or she discovered and disclosed his company’s illegal acts to a government authority. But there is an additional protection when it involves money paid by the government. When a company submits false bills to the government (such as invoices to Medicare, Medicaid, etc.), and then receives money based on those fraudulent invoices, employees can file a claim under the False Claims Act.39 This is where the employee discovers and reports that his or her employer knowingly presented a false or fraudulent claim for payment to the government. If you are then fired because your employer finds out you filed the False Claims Act case, you can sue for retaliation.
It is unlawful to retaliate against an employee who requests a lactation accommodation (such requesting a private place to express milk) or who attempts to express milk. CA law says that every employee who needs to express breast milk for the employee’s newborn child shall be provided a reasonable amount of break time to do so. This should be a reasonable break that, if possible, should run concurrently with any other break time. Moreover, the employer should make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, nearby the employee’s work area, for the employee to pump milk in private.40
Lawful Conduct During Non-Working Hours
In some situations, you can sue for retaliation if you are fired for personal activities that you engaged in during non-work hours and away from the employer’s premises.41 However, this activity must be based on plaintiff’s assertion of a recognized constitutional right. This is a difficult burden and some case law is not favorable.42
Disclosing Information About Your Working Conditions
It is unlawful for your employer to retaliate and fire you because you disclosed information about your working conditions. However, this law does not permit employees to disclose trade secrets, proprietary information, or other confidential information subject to legal privilege.43
In one case, employees gathered and discussed the employer’s pay and bonus structure. Afterwards, a company executive found out about the meeting and said he was upset that discussions of pay and bonus were happening. Six days after the gathering, the plaintiff (employee) was fired. The court held that she could sue for wrongful termination.44
Whistleblowing – Reporting Violations of Federal Securities Laws
Publically traded companies may not discharge or retaliate against employees for reporting that the employer has violated a federal securities law.45 This usually involves an employee who discovers that his or her employer is reporting inaccurate financial information.
Expressing Your Political Views
It is unlawful for your boss, manager, or employer to retaliate against you for your political beliefs. Employers are not allowed to coerce you or attempt to influence your political beliefs with the threat of termination.46
With that said, it is absolutely legal for your boss to fire you if you are being inconsiderate, rude, or intolerant because of your political views. So, don’t be a know-it-all (normal people don’t talk politics at work anyway). However, if your boss is the political jerk at work, and you believe you were terminated because she found out you don’t agree with her, contact a retaliation attorney like Mr. Robertson as soon as possible.
Doctors Advocating for Medically Appropriate Health Care
California wants doctors to be free to practice medicine without fear of retaliation. That is why it is unlawful for a health care organization to fire a physician-employee for advocating for medically appropriate health care for a patient.47 This law only applies to doctors who advocate for appropriate healthcare consistent with the degree of learning and skill ordinarily possessed by reputable physicians in the field.48 So, if you are advocating for quack-science medicine that is outside the standard of care, it is unlikely that you will prevail.
Illiteracy That Does Not Affect Job Performance
California law prohibits employers from firing employees because they are illiterate (meaning they cannot read) so long as they can perform the job satisfactorily.49
Using a Consumer Credit Report Against You
Employers may not check your credit history for employment purposes unless your position is one that meets one of the specific exemptions outlined in the statute (such as managerial employees, signatories on a bank, law enforcement officer, regular access to over $10,000 cash, etc.).50
Donating Organs or Bone Marrow
California Labor Code § 1512 prohibits an employer from retaliating against you for taking a leave of absence in order to donate an organ or bone marrow.51
Taking Time Off to Appear at Your Child’s School When Requested by a Teacher After Your Child Has Been Suspended
It is unlawful to fire an employee because he or she took time off to appear at his or her child’s school when requested by a teacher after the child has been suspended. This depends on the school requesting the parent’s presence under CA Education Code § 48900.1.52 The parent needs to give the employer appropriate notice.
Taking Time Off to Participate in School Activities of a Child in Kindergarten or Grades 1-12
It is against CA’s employment law to fire an employee because she took time off of work to participate in school activities of their child who is in kindergarten or grades 1-12.53 However, there are limits to this:
- The employer must employ 25 or more people at your worksite,
- You can only take up to 40 hours off each year, and only eight (8) in any given month,
- You can only take this time off to find, enroll, or re-enroll your child in a school or with a licensed child care provider, or to participate in activities of the school or licensed child care provider of his or her child, or to address a child care provider or school emergency,
- The employee shall utilize existing vacation, personal leave, or compensatory time off for purposes of the planned absence. An employee also may utilize time off without pay for this purpose, to the extent made available by his or her employer.54
Wage Garnishment or a Threat of Wage Garnishment
It is unlawful for a company to fire an employee because his or her wages are being garnished or under threat of garnishment.55
Testifying in Federal Court
Employers may not “injure” an employee witness “in his person or property” for testifying in deposition or trial.56 This law is called a “conspiracy to interfere with civil rights.” This applies to federal subpoenas. This means at-will employees are protected for responding to subpoenas.57 A good example would be if someone was suing your employer, and they subpoena you for documents or a deposition, and your employer says that they will fire you if you respond. That would violate the law.
An Arrest that Did Not Lead to a Conviction
This law is meant to prohibit employers from asking about arrests that did not result in a criminal conviction. If an employer finds out and uses an arrest that did not result in a criminal conviction to retaliate against or terminate the employee, he or she may sue for retaliation.58 There are several exceptions to this law. For example, employers may ask about possible misconduct and the arrest, so long as the arrest alone is not used for disciplinary purposes.59
Similarly, the Labor Code protects the rights of an employee who is applying for a job from disclosing information about a marijuana possession conviction if the conviction is more than two years old.60
Filed for Bankruptcy
Companies are not allowed to fire an employee solely because the employee has filed for bankruptcy or has filed for bankruptcy in the past.61 However, there is a specific case that says you are not protected if you are fired simply because you intend to file for bankruptcy.62 Obviously, the lesson learned here is that the best course of action is to not tell anyone at work that you are bankrupt….
Companies across the country are not allowed to discharge or discipline employees for being a union member or participating in union activity (or for exercising any other right afforded by the National Labor Relations Act).63 However, jurisdiction is reserved by the NLRB, so you usually would not sue in a private lawsuit under California employment law.
Interfering with ERISA Rights
ERISA is a complicated area of law regarding retirement benefits, disability insurance benefits, health benefits, and more. Basically, companies are not allowed to fire someone to prevent them from obtaining any benefit in which they may become entitled under the specific ERISA plan.64
Jury Duty, To Serve as a Witness in Court, Domestic Violence
Jury duty is a requirement. Therefore, California makes it a requirement for employers to let you take that time off from your job (while your job stays protected).65 But the law also says that if you’re going to appear in Court as a witness, or to file for relief from domestic violence, sexual assault, or stalking, your job is also protected.66
In addition to this, your employer cannot fire you because you are the victim of domestic violence, sexual assault, or stalking.67
Attending Judicial Proceedings
If you were the victim of a crime, or an immediate family member was the victim of a crime, and you need to take time off to attend judicial proceedings related to it, your job is protected by law.68 If your employer fires you for taking that time off, you can sue for retaliation.
Military Duty or Training
Your employer cannot terminate you for taking time off for military duty or training.69
Emergency Duty as a Volunteer Firefighter, Reserve Police Officer, or Emergency Rescue
Your employer cannot terminate you taking a leave of absence to perform “emergency duty as a volunteer firefighter or reserve police officer or emergency rescue personnel.”70
Using Accrued Sick Leave
It is against the law for your employer to retaliate against you for using or attempting to use your accrued sick leave.71 However, this time off must be used for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.72 An employee can’t use sick leave to go on a cruise but then sue for retaliation when his employer finds out.
Chapter 3 – How Do You Prove Retaliation?
If you would prefer to watch this video on YouTube, click here.
The best way to prove that you’ve been retaliated against is to first identify which situation you find yourself in:
- Are you still employed?
- Have you been fired?
If You Are Still Employed
If you are still working for the company and believe that you’ve been retaliated against, you probably have a few different objectives:
- You would like to stop the retaliation,
- You want to save your job, and
- You probably want to lay a foundation that a lawyer can use down the road if legal action becomes necessary.
You might be thinking that you need to “prove” to human resources or the company managers that you’ve been retaliated against. However, none of these three things, require you to “prove” retaliation. In fact, I usually advise clients of mine to avoid trying to “prove” their case to HR or management.
Why? Going to great lengths to prove something unlawful to HR or an executive will more likely paint a big target on your back. It will disrupt the flow of work, upset management, and irrevocably destroy the key relationship with your supervisor. I usually suggest a better way –
Simply put the company on notice with a written and respectful complaint.
Making a complaint like this will do a few wonderful things:
- This will probably stop the retaliation from continuing. Most employers (especially if they have HR) are smart enough to know when they might be opening the legal liability door. They don’t like that and they will probably instruct the bad guy or girl to knock it off, or they will separate the two of you. Both of which are good things.
- A good written complaint will dramatically help your lawyer prove your case (if it comes to that). I’ll talk more about this in a second.
- While a complaint, in and of itself, will not save your job, it will demonstrate to the company that you are willing to fight for yourself. Lawyers’ often say – “There is value in the fight.” When you stand up for yourself properly, you educate the opposing party that there are consequences if they do not act appropriately. If they fire you now, after you’ve complained in writing, they might face consequences.
However, don’t let this go to your head. If you complain inappropriately, you won’t save your job, you’ll destroy it. To avoid doing this, I highly recommend that you read Chapter 4 and watch my complaint video for more information on how to properly complain at work.
I’ve also created a video called How to Document Bad Behavior at Work. If you feel like you are in the beginning stages of retaliation, I strongly recommend you watch it over on YouTube or here on our blog..
If You Were Fired
If the company fires you in retaliation for engaging in a protected activity, and you find a good lawyer to take your case, how does the lawyer go about “proving” that you were retaliated against?
First, lawyers look at the sequence of events:
- As you now know, unlawful retaliation requires the company to take an adverse action against you because you engaged in a protected activity.
- Therefore, it’s very important that your lawyer prove that you FIRST made the complaint, submitted the report, or refused to break the law, and THEN the company retaliated against you.
- Far too often we get calls from people who believe they were fired for a complaint, only to find out that, actually, the company had written up the employee three times for poor performance BEFORE he ever complained. While it’s not impossible, facts like that make it very hard to convince a jury that the employee was retaliated against because of his or her complaint.
Second, lawyers will look at your job performance and the employer’s discipline history:
- It’s absolutely critical that your attorney establish your baseline of job performance. Moreover, we want to know how your employer has treated you and other employees in the past.
- Specifically, we need to be able to prove that you were a satisfactory employee BEFORE you engaged in the protected activity. Had you ever been written up before? How long had you worked for the company before your complaint? We need to know this so if the company lies and says you were a bad employee, we can show the jury that their claim is not true – the real reason you were fired was because you made a protected complaint.
- Additionally, we want to know how the company has treated other employees. If other employees have complained about the exact same thing that you did, but they didn’t get fired, that is going to make your case more difficult to prove.
- But, if the employer claims you were fired for being late one day, and they haven’t fired other employees for being late, then it’s more likely that the real reason for your termination is that you made a protected complaint.
- How do we go about proving all this? First, we look at your personnel file, performance documents, emails, and text messages. Second, we get people to testify under oath that you were a good employee. Third, we gather all the information and put it into a comprehensive timeline of events so that we can explain your story in order to the jury.
Third, we show that the company is lying:
- In litigation, lawyers have various discovery tools that we use to collect information. This includes:
- Requests for admission, and
- These tools allow us to collect information under oath. That means, if you or the company lies when responding to a question, the liar has committed perjury. If you commit perjury, the jury will know that you are a liar. And guess what happens when someone lies to a jury? They lose.
- Let’s say the manager who fired you claims, under oath, that the sole reason why you were fired was because you didn’t submit a report on time. You were supposed to submit it on Friday, but you didn’t get it in until Monday.
- But during discovery, we prove that the company has never fired anyone for submitting a late report. Additionally, it turns out, we subpoena the manager’s text messages and find that he admits to a friend that he didn’t fire you for submitting the late report.
- While it’s true that you didn’t get the report in on time, if we can show the jury that your manager has lied to them about why you were fired, it will help prove that the real reason for your termination was your protected complaint.
- In the legal world, we call this a pretext – essentially the lie is a fake reason for firing someone, where the real reason is a protected activity. I made an entire video on pretext – and I’ll leave a link below if you want to know more about that.
Finally, we package together the sequence of events, your job performance, the company’s discipline history, and all the evidence of pretext, and we present that to a jury during trial.
The jury is going to decide, on a preponderance of the evidence burden, whether or not your termination was substantially motivated by your protected activity. Under the preponderance standard, the burden of proof is met if you prove to the jury that there is a greater than 50% chance that your retaliation claim is true. This isn’t criminal court with a “beyond a reasonable doubt” standard. In civil cases like retaliation, it’s a lower burden of proof.
Chapter 4 – How Can You Prevent Retaliation from Happening?
There are two ways to answer this difficult question. Obviously, you can’t control how other people behave. However, you can and should take responsibility for your actions and the situations you find yourself in.
We will first answer this question from the perspective that nothing bad has happened yet, and you are just being proactive. We will then answer the question from the perspective that something bad has happened, you need to report it, but you are worried that if you do, you’ll be retaliated against.
How to Prevent Retaliation from Happening – Generally
Here are a few of the general answers we give people when they call:
- Provide undeniable value to your employer. If you provide the company with incredible value, it’s highly unlikely that you’ll be retaliated against in the first place. I believe this to be true even if you end up complaining about something very serious. Moreover, if you add a high level of value to the bottom line, the company will be more likely to protect you if a bad situation arises rather than allow someone to retaliate against you.
- Manage up. If you’ve been employed for a few years, I would suspect you’ve heard the phrase “manage-up” before. Basically, this means being proactive to assist the people above you in the corporate structure in accomplishing their goals. By helping your supervisor finish his/her tasks, you will create loyalty rather than just being another employee that he or she must constantly prod to get anything done.
- Complain politely and respectfully. If a situation has come up and you feel that you must make a complaint, you should do it politely and respectfully. We get calls all the time from people who said, “I told them that this was harassment and they were breaking the law! I demanded they fire him!” As you can imagine, this does not create a favorable impression on the person you are complaining to (or on a jury, for that matter). It makes you sound unreasonable and burdensome. On the other hand, if you complain with respect, you will be more likely to get the result you seek, and you will lay a stronger legal foundation should legal action become necessary down the road.
How to Complain at Work but Prevent Retaliation from Happening
One of the most effective ways to curtail retaliation and simultaneously lay a good legal foundation (in case legal action becomes necessary down the road) is to submit a written complaint to your employer.
Mr. Robertson made a video about how to complain at work but prevent retaliation from happening. We’ve also written an article on this subject which you can find here.
You can also watch this video on YouTube if you prefer.
Chapter 5 – When Should You Call a Lawyer?
The timing of your call to an attorney is absolutely critical in a retaliation case. If you call too soon, the lawyer will probably tell you to call back when things have gotten more serious. However, if you call too late, you might have made a serious mistake and ruined your case (like missing the statute of limitations or signing a severance agreement).
We usually tell people to call after they’ve been fired but before they sign any paperwork (such as a severance package). However, we understand that this simply isn’t possible in all cases.
So, here are some good guidelines to follow:
If You Are Still Employed
If you are still employed and you are thinking about calling a lawyer for retaliation issues, please read this first!
First, you must realize that retaliation lawyers are not well equipped to save your job or jump in, drop legal hand grenades, and put management in its place. The tools that we have are far more effective in fighting for justice after a serious wrong has been committed (e.g. retaliatory termination).
- Just think about this for a second, if you hire a lawyer while you are still employed, you essentially are threatening the company that you hope will continue paying your salary. Usually, we find that once you’ve hired a lawyer, your future at that company is essentially zero.
- You can hire a lawyer to simply advise you in the background, but you’ll have to pay by the hour for that kind of advice.
Second, legal fees are expensive. Since most employees don’t make lots of money, most lawyers work on a contingency fee; which means we don’t get paid until we recover money for the employee. This fee structure necessitates that there be money to recover.
- If your boss is retaliating against you, but you haven’t lost anything yet (such as wages, bonuses, etc.) then there isn’t much we can recover. However, if you get fired in retaliation for doing a protected activity, then there is something we can chase after.
- So, only call a retaliation lawyer after you’ve lost something significant. This isn’t limited only to monetary losses; extreme emotional distress is also a harm. However, if your case is entirely based on emotional distress, you may find it difficult to find a lawyer willing to take your case on contingency.
Third, if you submitted a complaint of retaliation and management and HR seem to be investigating and taking your complaint seriously, wait until that investigation is done (and you get the results) before you call a lawyer.
If You Were Fired
It is far more likely that a contingency lawyer like Mr. Robertson will be interested in your case after the company fires you.
You should call a retaliation attorney the day of your termination or the day after. At a minimum, we highly recommend that you reach out to a lawyer before you sign any separation paperwork!
Some employers try to force the employee they are firing into signing a severance deal during the termination meeting. They say things like, “You have to sign this right now.” We always advise that you respond with, “I’m going to take some time to review this with my family, and I will get back to you within a few days.” If you are over the age of 40, employers are legally required to give you 21 days to consider a severance agreement.Sometimes it takes a few days to have a lawyer review your situation and get back to you. The sooner you start this process the better.
Chapter 6 – What is the Statute of Limitations in a Retaliation Case?
A “statute of limitations” in a retaliation case is the absolute deadline before which you must file your case in Court. If you fail to meet this deadline, you cannot pursue your case. So, what is the deadline in a retaliation case?
The short answer is that it depends. The time limit to file a lawsuit for “retaliation” can involve one or more of hundreds of different employment laws – many of which have differing statute of limitations.
For example, you might file a lawsuit for unlawful retaliation because your employer fired you because you opposed racial discrimination at work. In a case like this you would have one year to acquire a right to sue letter from the DFEH, and then one year in which to file your case. But, you will probably also be filing a wrongful termination claim as well, which has a two-year statute of limitations. To make things even more complicated, if you work for a government employer like a city, state, or federal agency, you might have less than six months to initiate the legal process. It all depends on the case and circumstances.
The absolute best thing you can do to avoid running afoul of the statute of limitations is to hire an attorney very soon after the adverse action took place.
Chapter 7 – What Should You Tell a Lawyer When You Describe Your Case?
If you decide to call a lawyer to tell your retaliation story, here are some tips to make that process as smooth and efficient as possible.
- Let the Lawyer Take the Lead – Good employment lawyers like Mr. Robertson have handled a lot of retaliation cases. They can quickly get to the heart of the matter if you let the lawyer take the lead. With that said, any good lawyer will give you time to tell your story. Be wary of lawyers that don’t! Our office asks some important questions up front. After that, we give potential clients the time they need to tell their story. This doesn’t mean we have unlimited time though – many people ramble on and on about irrelevant stuff. If you seem to be getting off track, we will re-direct you. Unfortunately, the demands on an attorney’s time are immense, and it is important that potential clients respect that.
- You Will Be Asked Personal Questions – Answer them directly and don’t be embarrassed. Your consultation is confidential and it is important that you are honest with your lawyer. He/she is not interested in personal details unless they are important to your case.
- You Will Have to Tell the Lawyer the Basics – The basics include the name of your employer, how long you worked there, your job title, how much money you make, how many employees worked there, if you signed an arbitration agreement, your phone number, your email address, and the basic facts of your case. Please have this information ready when you are first talking to a retaliation attorney or a staff member.
- Keep Your Story Concise – We know that there is a lot of information that you want to tell us, but the initial consultation is not time for an exhaustive re-telling of every little detail. That will comes later if you have a case. The consultation process is time for the legal team to get an overview of the facts and circumstances surrounding your termination. We are looking for the high-level view of the case, not every gritty detail. If the attorney needs more specific information he or she will ask for it.
- Don’t Generalize and Don’t be Conclusive – It its extremely frustrating when potential clients call a lawyer and say, “My manager retaliated against me,” or “I know that is against the law,” or “The law says that I’m entitled to…” Don’t you think you should let the lawyer decide if the law was broken or not? We are the ones who have the experience and training to know when a law was broken and what you may be entitled too. Don’t presume that you know what the lawyer is thinking.
- Don’t Be Rude – If you call Mr. Robertson’s office and you are rude to anyone on his team, he will not take your case even if it’s worth millions of dollars. The reality is, when people are rude to members of our team, they were probably rude at work. We don’t take clients who do not appreciate our time, attention, or services.
Chapter 8 – What Do Attorney’s Charge in Retaliation Cases?
In most cases, retaliation lawyers like Mr. Robertson represent their clients on a contingency fee. This means that the lawyer doesn’t get paid anything up front, rather, the attorney gets paid a percentage of the recovery at settlement.
Obviously, this fee structure is ideal for clients who lost their job as they just lost their main source of income! However, in many cases, this fee structure is not possible because the case value isn’t significant enough to justify the investment required to pursue.
For example, let’s pretend that you have a case that might be worth $5,000 at settlement. It will be almost impossible to find a good lawyer to take that case like that because the costs of the case will exceed the value.
When the case doesn’t seem like a viable contingency case, attorneys like Mr. Robertson may be willing to still represent you, but the attorney would have to charge by the hour. This usually occurs when someone is still employed.
If you want to know Mr. Robertson’s contingency or hourly fees, give our office a call for a free consultation. Mr. Robertson’s attorney fees are directly in line with the standard in the industry.
If you would rather watch this video on YouTube, click here.
Chapter 9 – What are the Stages of a Retaliation Lawsuit?
Retaliation lawsuits generally follow the following steps we’ve outlined below. With that said, not two cases travel the same road! Each and every case takes a totally different journey so it is wise to expect surprises.
For example, in some retaliation cases your case will settle before your lawyer files it in Court. In other cases, it would take a miracle to settle the case without a trial. Why the difference? It depends the money and people involved.
You may be asking, “How long will my lawsuit last?” The best answer is, “Probably a long time.”
Some cases resolve within four to five months, but that is rare. It is more likely that your case will take between a year or two. The best way to get an estimate for your case is to ask your lawyer.
Stage 1: Consultation with Attorney & Hiring
After the retaliation or termination, the first thing you should do is to consult with a retaliation lawyer like Mr. Robertson. Do not wait. Memories fade, witnesses move out of state, and evidence goes stale. The best course of action is to take immediate action and call a lawyer.
During this initial consultation stage, you get to tell your complete story to the law office. If the lawyer decides that you have a case that is worth pursuing, and you trust the attorney, you and the lawyer will enter into an attorney-client fee agreement that outlines his or her scope of work. This usually entails a written contract that says the lawyer will pursue your case in exchange for a contingency fee (percentage of the case). You usually do not have to pay retaliation attorneys any money up front or out of pocket.
After you’ve hired your attorney, he or she will collect all relevant documents, create a timeline of events, discuss case strategy, and prepare the lawsuit.
Stage 2: The Lawsuit is Filed & Served
The first “official” stage of a retaliation lawsuit is your lawyer will file your lawsuit at the courthouse. Your lawyer will draft the “complaint,” which is a short legal document that describes the facts of your case, the laws that were broken, and the remedies you seek.
Once this happens, you become the “Plaintiff.” This is the legal term for the person who is initiating the lawsuit.
Your lawyer will then serve your lawsuit on the company-employer. The employer becomes the “Defendant.” While the employer will have thirty days to respond to your Complaint, your lawyer will probably permit them to take more time to prepare a response. Lawyers frequently grant the opposing side “extensions” like this as a professional courtesy. It often takes the employer several weeks to hire an attorney and prepare a response.
Some lawyer’s file a “verified” complaint, in which you sign stating that everything is true under the penalty of perjury. Some lawyers do not like doing this. Regardless, your involvement at this point simply consists of answering your lawyer’s questions and maybe signing some documents.
Stage 3: Early Motions to Dismiss the Case
In most cases, the company will file early motions to attempt to dismiss your case entirely or attempt to kick out some parts of your case. These motions have weird names like “demurrer” and “motions to strike.”
These motions usually fail (if your attorney has done his job properly pled your case and researched all the facts). Your involvement in this process is next to nothing. You will not want to attend any of these court hearings (they are very boring).
Stage 4: Written Discovery
In this stage, your attorney and the defense attorneys share documents and answer written questions.
What kind of documents do the attorneys share? They can be write-ups, performance evaluations, text messages, emails, company handbooks, social media entries, company procedures, and anything else that is relevant to your retaliation case.
Your lawyer will also prepare written questions (interrogatories) and send them to the defense lawyers. The employer’s lawyers will send your attorney interrogatories as well. These questions must be answered under oath and you will have to review and sign the answers.
This is an intense process but you won’t have to do much. The lawyers do most of the heavy lifting. Your job will be to review the documents your lawyers send you and provide signatures and answers where required.
Stage 5: Depositions
Depositions are verbal testimony under oath. The entire deposition is recorded. The witness who is being “deposed” will be asked questions by the opposing lawyer. If you are deposed, your answers can be used against you if they lie or exaggerate.
Your deposition will probably occur in a conference room at the opposing lawyer’s office. In the conference room will be your lawyer, the company’s lawyer, and a court reporter (his/her job is to simply record everything in writing). In some cases, the depositions are videotaped.
During your “depo” (as the lawyers call it), the opposing lawyer will ask you lots of questions while your lawyer defends you. This seems like a scary process, but it’s usually straightforward. Most lawyers are fairly matter of fact and respectful. All you have to do is answer questions directly, tell the truth, and follow your attorney’s lead.
Your attorney will also depose people at the company to learn more about the case. You may be asked to attend these depositions, or your lawyer may prefer to not have you there. This usually includes people who have knowledge regarding the facts and circumstances surrounding your retaliation. This could include the person who fired you, people who know about your performance history, HR, co-workers, etc.
Stage 6: Summary Judgment
A motion for summary judgment in a retaliation case sounds pretty scary, but you not have much to do with it except for reviewing and signing some paperwork. It will require weeks and weeks of work for your lawyer, but it won’t affect you much.
Basically, in this motion, the company is asking the Court to throw out the case or significant parts of the case. They are arguing that there are no issues that can be put to a jury, and thus the case should be dismissed.
This is a serious motion, but it isn’t granted in very many legitimate retaliation cases. If you have a good case and a good lawyer, you will prevail on this motion 90-95% of the time. However, if you have a bad lawyer or a bad case, the odds of losing go up.
Stage 7: Settlement Via Mediation or Mandatory Settlement Conference
Between 95-99% of retaliation cases settle before a trial verdict. Your case will probably settle at mediation or at a mandatory settlement conference. Mediation is where most retaliation cases settle.
Even though most cases settle at mediation after some discovery has been done, in certain cases the parties make an attempt to settle early. There are no restrictions on settlement, it can happen at any time during the life of a retaliation case. But let’s look at mediation in more detail.
“Mediation” is an all-day-long event where you and your attorney try to settle the case with a mediator. A mediator is a former judge or current attorney who is extremely good at settling cases. They can sort through the BS of each side and push people to compromise. The mediator will meet with you and explain your strengths and weaknesses. He or she will then go into a different conference room and do the same with the company and their lawyer.
Mediation can be contentious as your lawyer may argue with the mediator about facts and positions. After the facts have been discussed, money will be addressed. The parties may make offers back and forth. If an impasse is reached, the mediator may make a “mediator’s proposal.” This is the mediator’s best guess as to the amount both parties may agree too.
If the parties agree, the case settles. If not, the case continues.
Mandatory Settlement Conferences (“MSC”), on the other hand, are supervised by the court. You and your lawyer will go to Court on a designated day. The company and their lawyer will also go to court. The judge, or someone appointed by the judge, will try to mediate the case in an expedited fashion. In today’s environment, some cases settle at the MSC, but it is more common that they settle at private mediation.
Stage 8: Trial
If the parties fail to settle, then your retaliation lawsuit will proceed to trial. Trial is a stressful process where the two sides present their case to the jury. If the case is a “bench trial,” the parties will present their case to a judge. Retaliation trials can sometimes last several weeks.
When the parties finish presenting their case, they will give closing arguments to the jury. After closing arguments, the Judge will give the jury instructions. Then the jury will retire to a room to deliberate and decide who wins.
Stage 9: Appeal
An appeal occurs when one party believes a significant error has occurred at the trial level and needs to be rectified by the court system. Appeals can take over a year and extend the life of the case dramatically.
Chapter 10 – The Monetary Value of Retaliation Cases
How much do retaliation cases settle for? Some cases settle for millions of dollars, but most settle for much less than that. The value of your case depends on hundreds of factors, many of which you and your lawyer have no control over.
If you would rather watch this video on YouTube, click here.
Generally, retaliation victims can recover the following types of damages:
- Your lost wages, bonuses, commissions, and benefits.
- Damages to compensate you for the pain and suffering you experienced as a result of the unlawful conduct.
- Punitive damages if the company acted with malice oppression or fraud.
- In some cases, you can recover attorney’s fees as well. But this depends on the case.
Beyond these standard types of damages, the value of your case will increase or decrease dramatically depending on the following intangible factors:
- Facts – This involves the facts of what happened to you. How bad was the retaliation? When presented to a jury, will they be furious with the company? Or are they going to think that you are exaggerating?
- Insurance – Does the company have insurance that covers your claim? If so, what are the policy limits? What is the adjuster like? What kind of risk does the insurance company anticipate?
- Attorney – How good is your lawyer? How good is the company’s lawyer? Believe it or not, but this has a huge effect on the value of your case. Aside from the facts of the case, the single largest variable that contributes to getting a good settlement is the quality of your lawyer. So choose wisely.
- Honesty – Honesty is always the best policy. Did you tell the truth during your deposition? Does the company tell the truth? If one side lies, it increases the other side’s leverage. Every time one of my clients has lied to me (the lawyer), lied at work, or lied under oath, it has dramatically decreased the value of the case. Just tell the truth.
- Media – Is there a genuine threat of media coverage? This is rare, but it can increase the value of the case.
- Temperament – This is a massive factor in settlement value. What is the temperament of the person signing the check? Is it an emotional owner who would rather lose his company than settle a lawsuit? Or is it a rational business person who will make a prudent business decision?
Chapter 11 – About Branigan Robertson
Branigan Robertson is an experienced employment lawyer located in Orange County, California. He has successfully represented numerous individuals in retaliation claims against employers throughout California. This includes Fortune 500 companies, as well as local companies that have only a few dozen employees.
Mr. Robertson has experience handling complicated retaliation cases; including cases where he needed to depose the CEO, as well as the usual suspects like the person who decided to terminate, human resources, the managers, co-workers, and anyone else who is relevant.
Mr. Robertson keeps his overall case load as low as possible. He does this so he can maximize the amount of time he can dedicate to each client. Mr. Robertson frequently tells people that they can hire the best lawyer on the planet, but if he/she doesn’t have time to work on your case, the ultimate settlement or verdict isn’t going to be good.
As you can tell from reviewing this webpage, Mr. Robertson is methodical in his approach to the law and prides himself on doing an excellent job on his retaliation cases.
Where Does Mr. Robertson Take Cases?
Mr. Robertson represents people up and down the State of California. This includes the following areas:
- Orange County (Irvine, Anaheim, Fullerton, Huntington Beach, and more). Mr. Robertson’s office is in Irvine, CA.
- Los Angeles County (Pasadena, Long Beach, Santa Monica, Glendale, and more)
- Inland Empire (Riverside, Temecula, San Bernardino, Rancho Cucamonga, and more)
- San Diego County (Oceanside, Escondido, Chula Vista, and more)
- Ventura County (Thousand Oaks, Oxnard, Simi Valley, and more)
- Northern California – Mr. Robertson does travel to take good cases throughout NorCal, including San Francisco, Sacramento, San Jose, Monterey, and more.
Chapter 12 – Watch Out for These Types of Lawyers
Not all lawyers are the same. This section will give you some pointers on what to watch out for when you’re hiring a retaliation lawyer to take your case.
- Lawyers who are too busy to dedicate the necessary amount of time to pursue your case properly.
This is a huge problem in the legal industry. There are a lot of great attorneys who are simply too busy to do a good job on any of their client’s cases. If the lawyer you are thinking of hiring will not return your calls or is always cutting you off, he or she may be too busy to help you.
- Lawyers who will not give you enough time to tell the major parts of your story.
This is an easy red-flag. When you are discussing your case with the lawyer, does he or she constantly cut you off or dismiss your concerns? Does the lawyer make grand statements or legal conclusions without knowing all the facts? If so, you should be very careful about signing his or her fee agreement.
- Lawyers who promise that you’ll get a certain amount at settlement.
Not even the best lawyers can promise that you’ll get a certain amount of money. They can be confident that you will, but if they promise it, they are playing with fire. We’ve seen great cases settle for very little, and bad cases settle for more than they deserve. Each case is very different.
- Hot shot lawyers who will not touch your case until trial.
Some firms with high-flying partners will delegate your case down to a brand-new associate who doesn’t know how to properly litigate and prepare a case for trial. While not every case goes to trial, every case needs to be prepared for trial. Ask the firm if the attorney that you want will be personally handling discovery and the motion work. If they say no, make sure you are comfortable with the person who will be doing those important things.
Chapter 13 – Why Can’t You Find a Lawyer to Take Your Case?
There are a lot of people out there who want an attorney to take their retaliation case. Unfortunately, many people quickly find that it is difficult to find a lawyer who is interested in helping them. There are many reasons for this:
- Each case requires an enormous time investment – Your case may require hundreds (if not thousands) of hours to pursue correctly. Due to the amount of time your case will take, there is simply not enough hours in the day to help the number of people who want help. Therefore, some lawyers simply stop accepting cases when their case load becomes too high. Furthermore, an attorney can never predict exactly how long a case will take simply because we cannot control what the company or its lawyers will do. They may refuse to ever make a reasonable settlement offer. In that case, your lawyer will have to take the case all the way through trial.
- Your case may be legally weak – What this means is that the attorneys who are reviewing your case may believe that it’s going to be difficult to win because the facts don’t fit neatly within the confines of the law. There is a significant difference between things that are unfair and things that are against the law. While you may feel the retaliation you experienced is unfair, the attorney is primarily concerned with whether or not the law was broken. If it looks like it wasn’t, you’re going to have a hard time finding a lawyer who is willing to take your case on a contingency.
- Your case may be difficult to prove – In many cases, attorney’s like Mr. Robertson sincerely believe that the law was broken, but we know that the case will be impossible to prove. Litigation is a chess game. If you don’t have any pieces to put on the board, you’re going to lose.
- Your case may have small damages – Since each case requires an enormous time investment on behalf of the lawyer and his or her staff, if your case isn’t large enough economically, then it’s not practical for a lawyer to represent you via a contingency fee. All law offices need to pay their employees, pay office rent, maintain insurance, and keep the lights on. Your case may be worthy, but if it’s not economical, we’re sorry but we can’t help you.
- The lawyer may not believe you – Unfortunately, all lawyers have been lied by clients and potential clients. It costs our law firm thousands upon thousands of dollars when a client tellsus things that are not true and we pursue a claim based on incorrect information. We have learned to watch out for people who embellish, exaggerate, or straight-up lie.
- You may have been rude to the support staff – It is always a huge red flag when potential clients are rude to our support staff. We find it downright two-faced when someone is rude to our intake team but sweet as pie when they speak with the lawyer. This is a sign that the person is not worthy of being our client.
We wish we could help every retaliation victim who called our office. But that isn’t possible. Due to the sheer number of people who contact our firm, we have to pick and choose the clients and cases that make the most sense for our firm.
Chapter 14 – What if You’re an Immigrant?
What if you’re here in California legally on a visa, but are retaliated against at work? Do you have protections? What if you are undocumented? Can you defend yourself with the legal system?
A lot of immigrants are afraid of defending themselves by using the court system because they don’t want to risk their immigration status or deportation. So, what is the real deal? Is it wise for immigrants to use the court system to defend against retaliation?
According to California Law:
“(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.”73CA Labor Code § 1171.5(a)
This means that undocumented immigrants and folks here on a visa are allowed to pursue a claim for retaliation, just like anybody else. Beyond that, your former employer is prohibited from reporting or threatening to report your immigration status in retaliation for filing a lawsuit.74 On top of that, during the lawsuit, the employer’s ability to learn about your immigration status is limited. The law says that “no inquiry shall be permitted into a person’s immigration status….”75
Beyond that, immigrants can sue their employer for any unfair immigration related practice including:
- Requesting more or different documents that are required by federal immigration laws,
- Using the federal E-Verify system to check the employment authorization of a person at a time or in a manner not required under federal law,
- Refusing to accept such documents when they reasonably appear on their face to be genuine,
- Filing or threatening to file a false police report or a false report or complaint with any State or federal agency like the Immigration and Customs Enforcement Agency (“ICE”), or
- Contacting or threatening to contact immigration authorities.76
- CA Labor Code § 1102.5
- CA Government Code § 12940(h)
- CA Labor Code § 6310
- CA Labor Code § 98.6, 29 USC § 215(a)(3)
- CA Health & Safety Code § 1278.5
- CA Government Code § 12940(h)
- Parker v. Twentieth Centry-Fox Film Corp (1970) 3 C3d 176, 181
- Pollard v. El du Pont de Nemours & Co. (2001) 532 US 843
- Agarwal v. Johnson (1979) 603 P. 2d 58, 953
- State Farm v. Cambell (2003) 538 U.S. 408
- Turner v. Anheuser-Busch, Inc. (1994) 7 C4th 1238, 1258-1259
- CA Labor Code § 1102.5(b)
- CA Labor Code § 1102.5(c)
- CA Labor Code § 1102.5(a)
- CA Government Code § 12940(h)
- CA Labor Code § 6310
- CA Labor Code § 6311
- Lujan v. Minagar (2004) 124 CA4th 1040, 21 CR3d 861, 865-866
- CA Health & Safety Code § 1278.5
- Labor Code § 6403.5
- CA Health & Safety Code 1596.881 and 1596.882
- CA Labor Code § 132a
- Dutra v. Mercy Medical Center Mt. Shasta (2012) 2009 Cal. App. 4th 750
- Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal. App. 4th 1137, 1146-1150
- Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal. App. 4th 1137, 1146-1150
- DLSE Wage Adjudication
- CA Labor Code § 98.6
- CA Labor Code § 232(c)
- CA Labor Code § 232(a)-(b)
- CA Labor Code § 2699 et seq., CA Labor Code § 98.6(a)
- CA Government Code § 12940(h)
- 29 USC § 2612(a) & Xin Liu v. Amway Corp. (9th Cir. 2003) 347 F3d 1125, 1132
- CA Government Code § 12945.2(l)
- CA Government Code § 12940(m)
- CA Government Code § 12940(l)
- CA Labor Code § 1025-1028
- CA Labor Code § 1102.5(b)
- CA Labor Code § 1102.5(b)
- CA Labor Code § 12650-12656
- CA Labor Code § 1030-1033
- CA Labor Code § 96(k)
- Grinzi v. San Diego Hospice Corp (2004) 14 Cal. Rptr. 3d 893
- CA Labor Code § 232.5
- Grant-Burton v. Covenant Care, Inc., (2002) 122 Cal. Rptr. 2d 204
- 18 USC § 1514A
- CA Labor Code § 1101 & 1102
- CA Business & Professions Code § 2056(c)
- Wickline v. State of California (1986) 192 Cal.App.3d 1630
- CA Labor Code § 1044
- CA Labor Code § 1024.5
- CA Labor Code § 1512
- CA Labor Code § 230.7
- CA Labor Code § 230.8
- CA Labor Code § 230.8(b)
- CA Labor Code § 2929(b)
- 42 USC 1985(2)
- Haddle v. Garrison (1998) 525 US 121, 126
- CA Labor Code 432.7(a)
- Pittman v. City of Oakland (1998) 197 CA3d 1037, 1042-1044
- CA Labor Code § 432.8
- 11 USC 525(b)
- In re Majewski (9th Cir. 2002) 310 F3d 653
- 29 USC § 151-169
- 29 USC § 1140
- CA Labor Code § 230(a)
- CA Labor Code § 230(b) & (c)
- CA Labor Code § 230(e)
- CA Labor Code § 230.5
- CA Military & Veterans Code § 394
- CA Labor Code § 230.3
- CA Labor Code § 233 and 234
- CA Labor Code § 246.5
- CA Labor Code § 1171.5(a)
- CA Labor Code § 244(b)
- CA Labor Code § 1171.5(b)
- CA Labor Code § 1019