Short answer: In California, workplace retaliation is when an employer punishes you for reporting something illegal, unsafe, or discriminatory at work by doing things like firing you, cutting your hours, giving you bad reviews, or making your job harder.
It is unlawful for an employer to punish an employee for asserting their workplace rights protected under California and federal labor laws. Retaliation claims require showing the adverse action was motivated by the employee’s protected activity.
However, employers can still enforce legitimate workplace policies in a non-retaliatory manner for reasons unrelated to protected activities, such as poor performance issues. The key distinction is the action was retaliatory versus stemming from non-discriminatory business reasons.
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What Workplace Retaliation is Not in California
Here are some examples of what does NOT constitute illegal workplace retaliation under California law:
Enforcing company policies consistently. Disciplining an employee for violating a workplace rule or policy that is applied evenhandedly is not retaliation, even if the employee previously engaged in protected activity.
Terminating for legitimate business reasons. Firing an employee for valid, documented reasons like poor performance, misconduct, or economic necessity is allowed, as long as it is not actually pretext (excuse) for retaliation.
Reassigning duties reasonably. Transferring an employee to a different role, location or shift that is lateral and not objectively disadvantageous may not be retaliatory.
Giving critical feedback. Providing negative performance evaluations based on substantiated deficiencies in the employee’s work quality or productivity is permissible.
Refusing optional requests. Denying an employee’s request for a promotion, raise or transfer that they are not entitled to receive is generally not retaliation.
Managing difficult employees properly. Actions like enforcing attendance policies, blocking negativity or insubordination are allowed if not actually punishment for protected activities.
The key distinction is that the employer’s actions must be legitimately motivated by non-retaliatory, reasonable business purposes applied impartially, rather than being a pretext used to punish an employee for engaged in legally protected rights. Proper documentation of non-retaliatory reasons is important.
Examples of Workplace Retaliation Categorized By Industry
Tech Industry Workplace Retaliation Examples
A software engineer reports discrimination in promotion practices, favoring workers under 40. They’re subsequently excluded from key project meetings, given lower-priority assignments, and their code reviews face unusual scrutiny. They’re eventually moved to “maintenance mode” on legacy systems rather than new development.
A data scientist raises concerns about algorithmic bias in a hiring tool. Their research proposals are then repeatedly rejected, they’re taken off the AI ethics committee, and their team is reorganized to minimize their influence.
Healthcare Workplace Retaliation Examples
A nurse reports unsafe patient ratios and staffing practices at a hospital. Management then changes their shifts to all night rotations, assigns them to the most difficult patients without support, and gives them written warnings for minor documentation errors other nurses aren’t criticized for.
A medical technician discovers billing fraud where procedures are being upcoded. After reporting it, they receive a transfer to a satellite facility far from their home, get excluded from specialty training programs, and face heightened scrutiny of their time cards.
A production assistant reports sexual harassment by a prominent producer. Suddenly they’re no longer called for “A-list” productions, get assigned to remote shooting locations, and find their name mysteriously removed from crew lists for upcoming projects.
A talent agent flags financial irregularities in client accounts. They then face reduced commission splits, their top clients get reassigned to other agents for “portfolio balancing,” and they’re excluded from agency-wide meetings.
Agriculture Workplace Retaliation Examples (particularly relevant in CA’s Central Valley)
A farm supervisor reports violations of worker heat protection laws. Their crew size is reduced, they’re assigned to the most remote fields without shade structures, and their reports of equipment maintenance needs are ignored.
A quality control inspector reports pesticide safety violations. They’re moved to night shift inspection, their overtime requests are denied, and they receive disciplinary actions for “productivity issues” that didn’t exist before.
A hotel housekeeper reports wage theft violations. Management then doubles their room cleaning quota, assigns them only the most distant rooms on multiple floors, and starts nitpicking their cleaning quality with excessive room inspections.
A restaurant server reports food safety violations. They’re suddenly scheduled only for slow weekday lunch shifts, get the worst sections, and face hostile treatment from kitchen staff who were instructed to deprioritize their orders.
Construction Workplace Retaliation Examples
A site safety coordinator reports OSHA violations. They’re reassigned to remote sites with longer commutes, their safety concerns are ignored, and they receive write-ups for “taking too long” on inspections.
A construction worker reports wage violations regarding overtime. Their foreman starts assigning them the most physically demanding tasks, denies their tool requests, and excludes them from skilled training opportunities.
Financial Services Workplace Retaliation Examples
A bank compliance officer reports suspicious transaction patterns. They’re removed from key accounts, excluded from client meetings, and their promotion track is suddenly stalled due to “leadership concerns.”
An investment advisor reports improper fee structures. Their client portfolio is redistributed to other advisors, they’re excluded from client appreciation events, and their office is relocated to a less desirable location.
Retail Workplace Retaliation Examples
A store manager reports inventory theft by senior staff. They’re transferred to a troubled store in a distant location, their staffing requests are denied during peak seasons, and they receive impossible sales targets.
A loss prevention specialist reports discriminatory search practices. They’re assigned to overnight shifts only, their security concerns are dismissed, and they face heightened scrutiny over their break times.
Education Workplace Retaliation Examples
A teacher reports misuse of special education funds. They’re assigned the most challenging classes, denied classroom aide support, and receive negative evaluations for issues that weren’t problems before.
A university researcher reports grant mismanagement. Their lab space is reduced, their graduate student allocations are cut, and they’re excluded from department committees.
How Workplace Retaliation Can Look for Remote Workers
Digital Communication Retaliation
Managers deliberately exclude remote workers from critical Slack channels or Teams groups after they file complaints
Important project updates are shared in impromptu calls that the whistleblower isn’t invited to
Emails from the reporting employee are ignored or receive delayed responses, impacting their ability to meet deadlines
Virtual Meeting Manipulation
After reporting harassment, an employee finds their Zoom audio is frequently “having technical issues” during team meetings
Their presentations are rescheduled to inconvenient time zones
They’re assigned to present at meetings scheduled outside their documented working hours
Performance Monitoring Retaliation
Installation of invasive monitoring software only on the complainant’s computer
Selective screenshot capturing of their work compared to other team members
Using computer activity metrics (keyboard strokes, mouse movements) to criticize their “productivity” despite meeting deliverables
Digital Access Restrictions
Sudden revocation of access to key project management tools
Delayed approval of VPN access requests
“Technical issues” with their remote desktop connection that IT never seems to resolve
Documentation and Communication Pattern Changes
Requirements for excessive documentation of work activities that don’t apply to other remote workers
Demands for real-time status updates while other team members report weekly
Mandatory video-on policies selectively enforced for the reporting employee
Isolation Tactics
Removal from virtual team-building activities
Exclusion from informal digital water-cooler chats
Assignment to projects requiring minimal collaboration with others
Real Example Scenario
A remote software developer in San Francisco reports discriminatory promotion practices. Subsequently:
Their pull requests sit unreviewed for days while others get immediate attention
They’re required to keep their video on during all 8 hours of work while others can work camera-off
Their messages in technical discussion channels are ignored or dismissed
They’re assigned to solo maintenance projects instead of collaborative feature development
Their flexible work schedule is revoked, requiring them to work strict 9-5 hours despite being in a different time zone from their team
What Are the Elements of Retaliation in California?
To establish a claim of retaliation under California law, Californians need to several elements. While the exact elements may vary based on the specific statute or law being invoked, a general framework typically includes the following:
Protected Activity: The employee must have engaged in a protected activity. This can include reporting violations of laws, asserting rights under employment laws (such as filing a discrimination complaint), participating in investigations, or opposing unlawful practices.
Adverse Action: There must be an adverse employment action taken by the employer. This can include termination, demotion, suspension, pay reduction, unfavorable changes in working conditions, harassment, or other negative treatment that could dissuade a reasonable employee from engaging in the protected activity.
Causation: There must be a causal link between the protected activity and the adverse action. In other words, the employer’s action must be a direct response to the employee’s engagement in the protected activity.
Knowledge: It’s often a requirement that the employer knew about the protected activity. This means the employer was aware that the employee engaged in the activity before taking the adverse action.
Pretext: The employee may need to demonstrate that the stated reason for the adverse action is pretextual, meaning it’s not the real reason but a cover-up for the retaliatory intent.
Comparable Employees: In some cases, the employee may need to show that other employees who did not engage in the protected activity were receiving more favorable treatment in similar situations.
These elements may vary due to the specific law or regulation in use in a retaliation claim. For example, retaliation claims under the California Fair Employment and Housing Act (FEHA) may have additional requirements specific to discrimination or harassment claims.
Who Can Cause Workplace Retaliation in California?
Various individuals within an organization can cause workplace retaliation in California, including employers, managers, supervisors, coworkers, or any person with authority or control over the terms and conditions of employment.
It’s important to note that retaliation can occur both in the context of employment-related actions (such as termination, demotion, or denial of benefits) and in the form of hostile work environment or other adverse treatment.
Here are some potential actors who can cause workplace retaliation in California:
Employers: Employers, including business owners and company executives, may have involvement in making decisions that lead to retaliation if they take adverse actions against employees for engaging in protected activities, such as reporting discrimination or harassment, filing complaints, or asserting their rights.
Managers and Supervisors: Individuals with supervisory or managerial roles within an organization may be responsible for implementing decisions in relation to employee actions. If they engage in retaliation, it can have a significant impact on the affected employees.
Coworkers: Retaliation can also come from coworkers who may harbor ill will or engage in harmful behavior in response to an employee’s protected activity, such as reporting workplace violations.
Human Resources (HR) Personnel: While HR professionals are typically responsible for ensuring compliance with employment laws, there have been cases where HR personnel have involvement in decisions leading to retaliation. It’s essential for HR to be knowledgeable about anti-retaliation laws and to promote a culture of fairness.
Third Parties: In some cases, third parties, such as clients, customers, or vendors, can engage in retaliation against employees, and the employer may have a duty to address and prevent such behavior.
Contractors or Temp Agencies: If an organization uses contractors, temporary workers, or staffing agencies, there may be situations where individuals associated with these entities could cause or have involvement in retaliation.
It’s crucial for employers to have clear anti-retaliation policies and procedures in place, train their employees and managers on these policies, and take appropriate action to prevent and address any instances of retaliation.
How do I prove workplace retaliation in California?
Send emails to yourself with “Documentation of Workplace Incident” in subject line
Keep a physical notebook with dated entries for in-person interactions
Record dates, times, locations, and full names of all involved parties
Communication Documentation
Save all emails and messages (including Slack, Teams)
Screenshot digital communications
Record dates and times of phone calls
Note who was present during conversations
Document exact quotes when possible rather than paraphrasing
Performance History Documentation
Save copies of all performance reviews (before and after protected activity)
Keep written records of all commendations and achievements
Document changes in assignments or responsibilities
Save examples of similar work/situations involving other employees for comparison
Hostile Treatment Timeline
Document as much as you can of the following
Initial protected activity:
Date of complaint/report
Who you reported to
What specific response you received
Copies of any written complaints
Subsequent adverse actions:
Create chronological list of retaliatory actions
Note time gaps between protected activity and retaliation
Document previous treatment for comparison
Note any pattern of escalating behavior
Evidence Preservation Guide
Forward relevant emails to personal account (if not against policy)
Take photos of physical documents
Save meeting invites and calendar entries
Keep copies of company policies and handbooks
Document changes in company policies or their application
Save relevant texts or instant messages
Witness Information
List of potential witnesses
Their role in the situation
What they observed
Dates they observed it
Any statements they made about the situation
Note if they’re still employed with company
Physical/Electronic Storage
Keep duplicate copies in multiple secure locations
Use password protection for digital files
Consider keeping copies with a trusted family member
Maintain chain of custody documentation
Never store only on work devices
Medical Impact Documentation
Keep records of any medical visits related to stress/anxiety
Document changes in health or medications
Save therapy session notes if related
Keep record of health insurance claims
Financial Impact Records
Track lost wages or opportunities
Document denied promotions or raises
Keep records of any expenses incurred
Save evidence of similarly situated employees’ advancement
How Do I File a Workplace Retaliation Complaint in California?
To file a workplace retaliation complaint in California, you can follow these general steps:
Understand Your Rights: Familiarize yourself with the specific protected activities and retaliation prohibitions under California law. Make sure you have a clear understanding of what constitutes retaliation.
Document the Retaliation: Keep detailed records of the alleged retaliation incidents. Note dates, times, locations, people involved, any witnesses, and descriptions of the retaliatory actions.
Consult with an Attorney: While not required, it’s highly recommended to consult with an employment law attorney. They can provide legal advice, assess the strength of your case, and guide you through the process.
Contact the California Department of Fair Employment and Housing (DFEH): If you decide to proceed with a formal complaint, you can contact the DFEH, which is the state agency responsible for enforcing California’s employment laws. You can submit a complaint online or in person at a local DFEH office.
Complete the Complaint Form: If you submit the complaint online or in person, you’ll need to complete the appropriate complaint form, providing detailed information about the retaliation you experienced.
Include Supporting Documentation: Attach any relevant documentation, such as your records of the alleged retaliation, to support your complaint. This can strengthen your case.
Submit the Complaint: File the completed complaint form and any supporting documentation with the DFEH. Be sure to retain copies for your records.
Cooperate with the Investigation: If the DFEH decides to investigate your complaint, cooperate fully with their process. This may involve providing additional information, participating in interviews, and following their instructions.
Await the Outcome: The DFEH will investigate the complaint and determine whether there is sufficient evidence of retaliation. They will notify you of the outcome.
Consider Legal Action: If the DFEH determines there is reasonable cause to believe retaliation occurred but does not resolve the matter to your satisfaction, you may have the option to pursue legal action, possibly by filing a lawsuit with the help of your attorney.
Remember, the specifics of the process and requirements may vary due to certain circumstances and the involvement of particular laws .
What Should You Not Do When Trying to Prove Workplace Retaliation?
When trying to prove workplace retaliation, there are several things you should avoid doing, as they could negatively impact your case. Here are some things you should not do:
Do not retaliate against your employer: Retaliating against your employer or engaging in any misconduct yourself can harm your case and potentially result in disciplinary action against you.
Do not engage in any activity that violates company policies or procedures: Engaging in conduct that violates company policies or procedures can undermine your credibility and give your employer a legitimate reason for taking adverse action against you.
Don’t wait too long to take action: In California, there is a statute of limitations on filing retaliation claims, so it’s important to take action as soon as possible. Waiting too long to report the retaliation can make it harder to gather evidence and weaken your case.
Do not ignore or fail to document evidence: Documentation is crucial in proving retaliation. It’s important to keep a record of any emails, performance evaluations, or other evidence that supports your claim. Ignoring or failing to document evidence can weaken your case.
Don’t discuss your case with anyone who is not your attorney: Discussing your case with anyone who is not your attorney can harm your case and potentially waive your attorney-client privilege.
Overall, it’s important to approach the situation with professionalism and to seek legal advice from an experienced employment attorney who can guide you through the process of proving workplace retaliation.
Get Connected With a Workplace Retaliation Lawyer Near You
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Carey Wood is a dedicated advocate for plaintiffs’ rights with extensive experience litigating employment law and consumer protection cases in state and federal courts. Since joining the bar in 2013, she has focused on protecting employees’ rights in matters involving workplace discrimination, harassment, wrongful termination, and wage and hour violations in addition to breach of warranty and consumer fraud. Her skillful advocacy and commitment to justice have resulted in successful outcomes for her clients in complex litigation and trial proceedings.
Prior to joining Consumer Law Experts, Ms. Wood consistently fought for individuals, always prioritizing justice for those who have been wronged. Even before attending law school, she gained valuable experience in civil litigation advocating for individuals. Passionate about protecting employees and ensuring access to justice, Ms. Wood is committed to empowering her clients and holding employers accountable under the law.
