Sacramento Employment Lawyer

Proving Workplace Retaliation in California

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Under California law, to establish a claim for workplace retaliation, the employee must show (1) that he engaged in a protected activity (such as complaining about harassment or discrimination, exercising rights under FMLA or disability laws, filing a workers compensation claim, participating in a union related activity, taking time off to serve on a jury duty, testifying in court, etc...); (2) the employer subject the employee to an adverse employment action (demotion / termination / transfer to a less desirable position or location); and (3) there exists a causal link between the protected activity and the employer's action. Colarossi v. Coty US Inc. (2002).

While the first two elements of a retaliation claim can be usually demonstrated by the aggrieved employee's own testimony, the third element is naturally a challenge to prove. In other words, an employee can testify to the fact that he complained and was terminated shortly after, but proving the critical elements that complaining was the reason for termination is difficult because direct evidence of the link is, of course, rarely, if ever, available. No employer in his right mind will admit that he actually retaliated against an employee. Therefore, most retaliation claimants must rely on circumstancial evidence of proving their case. Circumstantial evidence typically related to such factors as the plaintiff's job performance, the timing of events, and how the plaintiff was treated in comparison to other workers. Flait v. North American Watch Corp. (1992). Thus, excellent performance reviews before the protected activity, followed by poor performance reviews shortly after the protected activity can be one piece of evidence of retaliatory motive. Being a long-term employee and being terminated shortly after engaging in a protected activity is even stronger evidence of employer reprisal. Finally, when the discipline imposed on one employee is harsher than the discipline imposed on other workers for the same violation (for instance: verbal warning for being late once vs. suspension for the same violation against a victim of retaliation) can be also used to support a retaliation claim.

First Amended Retaliation Protection to Public Employees in California

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On May 24, 2010, the 9th circuit published it's decision in Anthoine v. North Central Counties Consortium"The first amended shields a public employee if he speaks as a citizen on a matter of public concern." Huppert v. City of Pittsburg, 574 F.3d 696, 702 (9th Cir. 2009). However, "when a public employee makes statements pursuant to his official duty, the employee is not speaking as a citizen for first  amendment purposes, and the Constitution does not insulate his communications from employer discipline. Garcetti v. Ceballos, 547 U.S. 40, 421 (2006). The courts employ a five-step analysis to determine whether an employer impermissibly retaliated against an employee for protected speech: 1. whether the plaintiff spoke on a matter of public concern - matter of political, social or other concern to the community (as opposed to a personal interest); (2) whether the plaintiff spoke as a private citizen or public employee - where the speaker had no official duty to make the questioned statement, or if the speech was not the product of performing the tasks the employee was paid to perform; (3) whether the plaintiff's protected speech was a substantial or a motivating factor in adverse employment action - such as proximity in time between the speech and adverse employment action and/or employer's expression of opposition to the subject speech; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public - the employer must demonstrate actual, material and substantial disruption, or reasonable predictions of disruption in the workplace. Robinson v. York, 566 F.3d 817, 824 (9th Cir. 2009); and (5) whether the state would have taken the adverse employment action even absent the protected speech. (fed docket 2:06-cv-01169-JAM-KJM) - an opinion that discusses government employees' protection against retaliation in California.

Considering the various privileges and immunities available to public employers, first amended rights represent a significant protection to state and other governmental workers, exercising free speech. First amendment right usually becomes an issue when a public employee complains about mismanagement, fraud, theft of public funds or other criminal or other egregious violations that he/she witnesses at workplace.

In the recently decided case, mentioned above, the court found that the above elements are satisfied or at least might be satisfied to demonstrate first amended violation, where a low level public employee jumped the chain of command and reported directly to the department chairman that his immediate supervisor misrepresented the status of the employer's compliance with certain legal obligations.

California Employment Law: Whistleblower Retaliation Protection After Complaining about Safety Violations

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California Labor Code section 6399.7 states that no person shall discharge or in any manner discriminate against any employee because of protected conduct, nor shall any pay, seniority, or other benefits be lost for exercise of any such right. This protection extends to filing any complaint or testifying in any matter related to occupational safety.

This provision is a powerful protection in those relatively common situations where a production/assembly plant employee complains to his boss about a certain dangerous condition or safety violation at workplace. After not having those concerns addressed, the employee contacts OSHA or any other governmental agency in charge of enforcing specific safety regulations. Shortly after the management is contacted by the agency, the employer is likely to feel "back-stabbed" and will engage in a campaign of discrimination, harassment and creating hostile work environment for the employee that only wanted to make sure that his workplace is safe for himself and his co-workers. 

It is important to note, that the protection against retaliation extends to those employees who "reasonable believe" that safety violations take place. This means that the employee does not have to prove that the workplace is unsafe or in violation of any code, but only has to "reasonably believe" that such violations take place. Thus, in many cases, even though the employer proves that no violation took place and that the employer was in compliance with all the rules, the employee still prevailed on his retaliation claim, after the employer suspended, demoted, or terminated the complainant.

Workplace Retaliation and Wrongful Termination in Sacramento

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One of the most common reasons that managers and supervisors retaliate against their employees is because they complain about harassment by the same manager/supervisor to higher ranked executive.
None of us like the complainer - someone who goes "behind our back" to tell on us to someone who has power over us. However, while in social situations saying negative things about someone might be rude and unacceptable, an aggrieved employee who feels helpless to resolve his issues at workplace with his/her immediate supervisor usually doesn't have a choice - the only person who he can and must turn to, as per the company's policies, is his boss' boss. This often leads to attempts by the worker's supervisor to retaliate against the complainant. Most supervisors no that retaliation (one kind of retaliation is taking adverse action against an employee because he complained about sexual or gender harassment, or harassment due to one's race or disability) at workplace is illegal in California, and therefore they will try to make the worker's life harder in more subtle but equally painful ways, such as issuing unfounded negative performance reviews, falsely accusing an employee of misconduct or even violence at workplace and otherwise trying to build a record or a paper trial to get rid of the employee. 

If you enjoy your work and your workplace, and there is only one or two "rotten apples" that try to retaliate against you for your complaint, it is important that you discuss this situation with an experienced employment lawyer, with whom you would be able to come up with a strategy to deal with your specific situation, considering all the unique facts and circumstances of your career and workplace. Even though I am making a living out of both suing and defending employers, I firmly believe and convey to my clients that a job is better than a lawsuit a no job.