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 any forbidden practices under California law.
This page was designed to help non-lawyer workers learn more about employment rights and help them decide if they should contact a retaliation lawyer.
This page discusses the following topics:
- Retaliation Law in California
- Opposing Employer Discrimination
- Retaliation, wrongful termination, or whistleblower case?
- Statute of limitations
- What Can I Recover in a Retaliation Suit?
- What is the Average Settlement in a Retaliation Case?
- How Much Does a Retaliation Attorney Cost?
While this page discusses certain legal topics, it’s important to remember it’s not a substitute for speaking with a experienced employment attorney.
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Retaliation Law in California
You may be asking, “What are forbidden practices under California Law?” The Fair Employment & Housing Act (FEHA) prohibits many discriminatory employment actions. Additionally, the California Labor Code prohibits retaliation for many reasons. Combined together, the FEHA & CA Labor Code make it illegal for an employer to take any adverse action against an individual because of his or her:
- sexual orientation
- gender (sex)
- pregnancy, childbirth or related medical conditions of any female employee
- medical condition
- physical or mental disability
- political activities
- national origin
- marital status
- age (if 40 or over)
- filing a complaint with the Labor Commissioner
California Government Code §12940(h) makes it unlawful “for any employer…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.”
Put simply, a worker who opposes any employment discrimination or harassment based on the above listed traits is protected against employer retaliation. In addition to FEHA, the California Labor Code and Health and Safety Code also prohibit certain retaliatory practices by employers.
How Do You Prevent Retaliation from Happening?
That is a great question – what can you do to prevent retaliation from happening? It’s such a good question that we made an entire blog post about it – How to complain at work and prevent retaliation from happening. It offers seven great tips on how to structure your complaint so that you are effective at fixing the problem, rather than antagonizing the boss to fire you.
Opposing Employer Discrimination
So what exactly does the government code mean when it talks about “opposing” discrimination or harassment? This is an area of law that continues to be open to interpretation. However, some solid examples include writing a complaint to HR, notifying a supervisor, or confronting the harasser directly.
The California Code of Regulations §11021(a)(1) also provides further guidance on the practice of opposing opposition, making retaliation for the following against the law:
- Seeking advice of the Department of Fair Employment and Housing
- Assisting any person who seeks advice from the DFEH
- Participating in activity that the employer perceives as opposition to discrimination
As is so often the case with the law, claiming retaliation and proving it are two different things. Because it’s easier to prove that you’ve opposed something when you have an email, letter or text, it is recommended that an employee oppose discrimination and harassing behaviors in writing.
A notable retaliation case considered by the CA Supreme Court in 2005 involved a regional sales manager named Elysa Yanowitz and her former employer L’OREAL USA. In the case, Yanowits alleged she was told by a male executive to fire a female subordinate because, in his words, she wasn’t sufficiently sexually attractive or “hot.” Yanowitz refused to fire the subordinate and asked her boss to provide a more adequate justification for terminating the employee. After continued refusal to fire the employee, Yanowitz alleged she was subject to heightened scrutiny and hostile treatment, which according to court documents, caused distress and led her to leave her position with the company.
In its ruling, the Supreme Court concluded:
an employee’s refusal to follow a supervisor’s order that she reasonably believes to be discriminatory constitutes protected activity under FEHA … an employer may not retaliate against an employee on the basis of such conduct.
Retaliation, Wrongful Termination, or Whistleblower?
While retaliation, wrongful termination and whistleblower cases share certain similarities, it’s important to understand what also makes them distinct. As this page has described so far, a retaliation case occurs when an employer terminates or demotes a worker for opposing discriminatory practices. Wrongful termination describes similar employer behavior, but in broader terms. For instance, wrongful termination might include an employee getting fired for complaining about unsafe working conditions or a co-worker’s threats of violence, neither of which would be covered by FEHA’s retaliation law.
A whistleblower case involves specific statutes such as Labor Code § 1102.5, which prohibits employers from preventing an employee from disclosing information about violations of federal or state law. A whistleblower case might also be covered by Health and Safety Code § 1278.5, which provides protections for employees who report unsafe patient care or conditions.
It’s important to realize that different laws provide protection under different circumstances. If you feel an employer has dealt you with unfairly, contact our office to speak with a qualified retaliation attorney.
Statute of Limitations
In most cases, an employee has one year from the retaliatory act to acquire a right-to-sue letter from the Department of Fair Employment and Housing. Usually, your retaliation attorney will request this letter for you. In other cases you may have a two year statute of limitations for a retaliation case. The statute of limitations varies for public employees, and in some cases, can be as short as six months. Because the SOL time frames can vary, it’s important you contact a retaliation lawyer as soon as the retaliation occurs.
What Can I Recover in a Retaliation Suit?
Persons who win their retaliation cases are eligible to collect economic losses. This means wages that would have been paid had the worker not been fired. In some cases a person is also eligible to collect attorney’s fees as well as compensation for pain and suffering. In rare instances, retaliation cases result in punitive damages for the client. These types of damages are more difficult to prove and must show that the employer acted with oppression, fraud or malice. Ask your retaliation lawyer what damages apply to your situation.
What is the Average Settlement in a Retaliation Case?
Ninety-five percent of all employment cases settle. Since the terms of settlement agreements are confidential, it is impossible to answer this question with any accuracy. However, in our experience, the majority of cases settle for under $50,000.
It’s important to keep in mind that there are several factors involved in retaliation cases, including the personalities of judges, attorneys and juries. It’s possible that the same set of facts presented to two different juries might be judged differently. Since every case is different, it’s important you don’t go develop a set amount in your mind.
How Much Does a Retaliation Attorney Cost?
Retaliation attorneys who represent workers in retaliation cases typically get paid a contingency fee. This means the client doesn’t pay expenses out-of-pocket, but rather the lawyer is paid a percentage of what is recovered at the conclusion of the case.
Should I Consult a Retaliation Attorney?
If you feel you have been the victim of retaliatory employment practices or other employment-related injustice, contact our office to see how we can help. While you are not required to consult with a retaliation lawyer when requesting a right-to-sue, or even going to court, lawsuits are extraordinarily complex, and it requires a well-trained professional to maximize the value of your case. It’s also important to contact an attorney as soon as the retaliation, whether firing, demotion or harassment, occurs. As the statute of limitations ticks away, memories fade and witnesses lose contact. Contact us as soon as possible.