Under California employment law, your company may not engage in workplace retaliation against you for
- reporting violations of law,1
- opposing, complaining about or participating in an investigation of workplace harassment or employment discrimination,2
- requesting reasonable accommodations for a disability or their religious beliefs,3 or
- filing or assisting in a “qui tam” lawsuit under the California False Claims Act.4
These workplace retaliation laws fill an important gap in California employment law. While employees are protected against wrongful termination in a variety of circumstances, employees who do not lose their jobs (but instead experience adverse employment actions, abuse or other forms of retaliation at work) have a harder time finding legal remedies.
But the workplace retaliation provisions of California’s whistleblower laws and Fair Employment and Housing Act (“FEHA”) retaliation laws provide a legal remedy for employees whose employers retaliate against them -but do not fire them -for exercising their rights under these laws.
Below, our California labor and employment law attorneys discuss the following topics:
- 1. What is workplace retaliation?
- 2. Can employers retaliate for whistleblowing?
- 3. How does FEHA protect against workplace retaliation?
- 4. How does the False Claims Act (Qui Tam) protect me?
- 5. How do I sue for workplace retaliation in California?
- 6. How do you prove retaliation in the workplace?
1. What is workplace retaliation?
The basic legal definition of workplace retaliation in California is:
- Your employer takes an adverse employment action against you or treats you in a discriminatory manner,
- Because you engaged in a protected activity.
When the adverse employment action is a termination (job loss), then it is easy to identify this as a case of potential wrongful termination.
Similarly, if your employer responds to the exercise of your legal rights by making your working conditions so intolerable that you have no choice but to resign, then you have a case against the employer for wrongful constructive termination.
But other forms of employer retaliation can be more subtle–and harder to spot. Some telltale signs that your employer might be retaliating against you include the following:
|Differential Treatment||You are being held to higher/different standards than your co-workers, such as: |
|Sudden issues with ongoing conduct||Your employer takes adverse action against you – such as an unfair write-up – for things you did prior to discovering your protected activity.|
|Suspicious timing||Your employer’s adverse actions occur shortly after learning of your protected activity.|
|Obvious pretexts||The reason your employer gives for taking adverse action against you is clearly untrue.|
|Not following policy||Your employer is not following its own policies or is enforcing them selectively.|
|Changing explanations||The reasons your employer gives you for its adverse action changes.|
|Papering of your file||Once your employer learns of your protected activity, it: |
2. Can employers retaliate for whistleblowing?
Under California Labor Code 1102.5, employers may not engage in retaliation against employees who
- report suspected criminal activity by their employer to a government or law enforcement agency,
- report a suspected violation of a law or regulation to a supervisor or other person at the employer who has the authority to investigate the violation, or
- provide information to or testify before any government body conducting an investigation, hearing or inquiry into a potential violation of law by their employer.5
Labor Code 1102.5 is a so-called “whistleblower protection” law. A whistleblower protection law generally protects employees from both firing/termination AND less severe forms of employer retaliation for reporting suspected illegal activity by their employer.
You are protected by this whistleblower retaliation law even if it turns out that your employer did not actually break the law. All that matters is that you reasonably believed that your employer may have done something illegal.6
Example: Nikolai works for a software company. Based on some conversations he has overheard, he believes that his company may be engaging in violations of antitrust laws with another similar company. Nikolai reports his suspicions to an in-house lawyer at the company.
The lawyer investigates the report and determines that nothing illegal is going on. But she also lets the CEO of the company know that Nikolai was the one who reported his suspicions to her.
After that, Nikolai is not given assignments on important projects at work. His performance reviews also suddenly turn negative. He is passed over for a promotion that he had previously been told he could get.
Nikolai may be the victim of workplace retaliation for his whistleblowing activities.
Note that employers may try to claim that a whistleblowing employee was insubordinate and therefore fire-able. Though whisteblowing alone does not rise to the level of insubordination.
3. How does FEHA protect against workplace retaliation?
The California Fair Employment and Housing Act (the “FEHA”) protects employees from retaliation if they do any of the following:
- Oppose acts of harassment (sexual harassment or non-sexual harassment) or employment discrimination or an employer’s failure to grant required pregnancy/family leave;
- File a complaint about harassment or workplace discrimination;
- Testify or assist in any proceeding under the FEHA; or
- Request workplace accommodations for their religious beliefs or observance or for a disability.7
FEHA retaliation under California employment law occurs when any of the above activities by an employee is a substantial motivating factor for adverse employment actions against, or discriminatory treatment of, that employee.8
Example: Robia is a Muslim. She gets a job at a call center working long shifts.
Robia’s religious beliefs require her to take regular breaks to pray over the course of the day. She asks her boss if she can take these breaks and use a supply closet for her prayers.
Robia’s boss agrees because he does not want to be accused of religious discrimination. But he is not happy about the inconvenience this causes. So he begins assigning Robia to less desirable night and weekend shifts, and he does not allow her to attend several trainings that could have helped her rise in the company.
Robia’s boss is guilty of workplace retaliation under the FEHA.
4. How does the False Claims Act (Qui Tam) protect me?
The California False Claims Act also prohibits employer retaliation against employees who take advantage of their rights under that law.
The California False Claims Act gives employees the right to file a so-called “qui tam” lawsuit against an employer who is committing fraud, theft or embezzlement with respect to government funds. (A “qui tam” lawsuit is a suit filed by a private citizen on behalf of a government entity.)9
The workplace retaliation provisions of the California False Claims Act prohibit your employer from retaliating against you if you
- file, or assist in any way with, a qui tam suit, or
- make an effort to stop a violation of the California False Claims Act.10
Example: Ted is a manager for a construction company that does a lot of work under state government contracts. He suspects that his company has been overbilling the government. So he files a qui tam suit in state court. The California Attorney General’s office then takes over the lawsuit.
Ted’s boss understands that it would be illegal to fire him over the qui tam suit and that it would probably make the company look bad in the lawsuit. But the boss demotes Ted instead.
Ted probably has a case against his employer for California False Claims Act workplace retaliation.
5. How do I sue for workplace retaliation in California?
Different California workplace retaliation laws offer different options for employees who are retaliated against by their employer.
Labor Code 1102.5 LC
If you think you have been a victim of whistleblower retaliation under Labor Code 1102.5 LC, you must first notify the California Labor and Workplace Development Agency through an online form and your employer via certified mail.11
After you file this notice, the Labor and Workplace Development Agency may decide to investigate your complaint itself. If it chooses not to do so, you may file your own lawsuit in California Superior Court.12
FEHA workplace retaliation
If your employer retaliates against you for exercising your rights under the Fair Employment and Housing Act, then your first move is to file a complaint with the government agency Civil Rights Department (CRD) – formerly the Department of Fair Employment and Housing (DFEH).
You may then sue your employer for workplace retaliation once the CRD issues a “right to sue” notice.13
California False Claims Act workplace retaliation
You may file a lawsuit against your employer immediately if you are a victim of workplace retaliation under the California False Claims Act.14
Damages for workplace retaliation
Damages in a workplace retaliation case will be somewhat different than damages in a California wrongful termination case. This is because wrongful termination damages typically include the value of lost pay and benefits attributable to the loss of the plaintiff’s job.
In a workplace retaliation case, though, damages are more likely to include:
- Damages for emotional distress arising from your mistreatment at work–including physical pain, loss of enjoyment of life and/or anxiety;
- Damages for harm done to your professional reputation as a result of retaliatory adverse employment actions (such as demotion, being denied a promotion or being denied professional development or work opportunities); and/or
- Lost wages from a retaliatory demotion or denial of a promotion or raise.15
6. How do you prove retaliation in the workplace?
Document every instance you suffered retaliation, including the
- location, and
If possible, compile evidence of the retaliation as revealed in:
- recorded communications, such as text messages, emails, and voicemails
- memos and other office documents
- legally-recorded video or audio
- work logs
- job reviews
Also compile the names and contact information of eyewitnesses to the retaliation.
For questions about California law on workplace retaliation or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Labor Code 1102.5 LC — Employer or person acting on behalf of employer; prohibition of disclosure of information by employee to government or law enforcement agency; suspected violation or noncompliance to federal or state law; retaliation; civil penalties [whistleblower workplace retaliation]. (“(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (d) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment. . . . (h) An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any acts protected by this section.”)
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [FEHA workplace retaliation]. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (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.”)
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [workplace retaliation for requesting reasonable accommodation]. (“(l) . . . (4) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation [for religious practices] under this subdivision, regardless of whether the request was granted. . . .(m) . . . (2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation [for disability] under this subdivision, regardless of whether the request was granted.”)
- Government Code 12653 GC — California False Claims Act workplace retaliation. (“(a) Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of his or her employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action under this section or other efforts to stop one or more violations of this article. (b) Relief under this section shall include reinstatement with the same seniority status that the employee, contractor, or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, and where appropriate, punitive damages. The defendant shall also be required to pay litigation costs and reasonable attorneys’ fees. An action under this section may be brought in the appropriate superior court of the state. (c) A civil action under this section shall not be brought more than three years after the date when the retaliation occurred.”)
- Labor Code 1102.5 LC — Employer or person acting on behalf of employer; prohibition of disclosure of information by employee to government or law enforcement agency; suspected violation or noncompliance to federal or state law; retaliation; civil penalties [whistleblower workplace retaliation], endnote 1 above.
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [FEHA workplace retaliation], endnote 2 above; Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [workplace retaliation for requesting reasonable accommodation], endnote 3 above.
- Judicial Council of California Civil Jury Instructions (“CACI”) 2505 — [FEHA Workplace] Retaliation—Essential Factual Elements (Gov. Code, § 12940(h)). (“[Name of plaintiff] claims that [name of defendant] retaliated against [him/her] for [describe activity protected by the FEHA]. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of plaintiff] [describe protected activity; 2. [That [name of defendant] [discharged/demoted/[specify other adverse employment action]] [name of plaintiff];] [or] [That [name of defendant] subjected [name of plaintiff] to an adverse employment action;] [or] [That [name of plaintiff] was constructively discharged;] 2. That [name of plaintiff]’s [describe protected activity] was a substantial motivating reason for [name of defendant]’s [decision to [discharge/demote/[specify other adverse employment action]] [name of plaintiff]/conduct]; 3. That [name of plaintiff] was harmed; and 4. That [name of defendant]’s decision to [discharge/demote/[specify other adverse employment action]] [name of plaintiff] was a substantial factor in causing [him/her] harm. [[Name of plaintiff] does not have to prove [discrimination/harassment] in order to be protected from retaliation. If [he/she] [reasonably believed that [name of defendant]’s conduct was unlawful/requested a [disability/religious] accommodation], [he/she] may prevail on a retaliation claim even if [he/she] does not present, or prevail on, a separate claim for [discrimination/harassment/[other]].]”)
- Government Code 12652 GC — Qui tam lawsuits.
- Government Code 12653 GC — California False Claims Act workplace retaliation, endnote 4 above.
- Labor Code 2699.3 LC — Requirements for aggrieved employee to commence a civil action [under LC 1102.5 whistleblower workplace retaliation law].
- Government Code 12965 GC — Civil action in name of department; group or class complaint; relief; tolling of statute of limitations [FEHA workplace retaliation lawsuits].
- Government Code 12653 GC — California False Claims Act workplace retaliation, endnote 4 above.
- See, for example, Judicial Council of California Civil Jury Instructions (“CACI”) 3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage [in workplace retaliation cases]). (“[Insert number, e.g., “1.”] [Past] [and] [future] [physical pain/ mental suffering/loss of enjoyment of life/disfigurement/physical impairment/inconvenience/grief/anxiety/humiliation/emotional distress [insert other damages]]. [To recover for future [insert item of pain and suffering], [name of plaintiff] must prove that [he/she] is reasonably certain to suffer that harm.] No fixed standard exists for deciding the amount of these damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.”). See also Colucci v. T-Mobile USA, Inc. (Court of Appeal of California, Fourth Appellate District, Division One, 2020) 48 Cal. App. 5th 442. See also Tilkey v. Allstate Ins. Co. (Court of Appeal of California, Fourth Appellate District, Division One, 2020) 56 Cal. App. 5th 521.