Retaliation after a complaint: how California law protects you

Retaliation is the most common claim brought by California employees, in part because it does not depend on proving the original complaint was right. What matters is that you engaged in protected activity and were punished for it.

Whistleblowing: Labor Code 1102.5

Labor Code 1102.5 protects employees who disclose information they reasonably believe shows a violation of a state or federal law or regulation, whether to a government agency, to law enforcement, or internally to a supervisor or someone with authority to investigate. It also protects employees who refuse to take part in activity that would violate the law.

The burden of proof favors employees. In Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, the California Supreme Court held that these claims follow Labor Code 1102.6: the employee must show the protected activity was a contributing factor in the adverse action, and then the employer must prove by clear and convincing evidence that it would have taken the same action anyway for legitimate reasons.

Wage and Labor Code complaints: Labor Code 98.6

Employers may not retaliate against employees for complaining about unpaid wages or other Labor Code rights, filing a claim with the Labor Commissioner, or testifying in a proceeding (Labor Code 98.6). Since January 1, 2024, if an employer takes adverse action within 90 days of the protected activity, there is a rebuttable presumption that it was retaliation. Remedies can include reinstatement, lost wages, and a civil penalty of up to $10,000 per violation awarded to the employee.

Discrimination and harassment complaints: FEHA

The Fair Employment and Housing Act separately prohibits retaliating against someone for opposing discrimination or harassment, filing a complaint, or taking part in an investigation (Government Code 12940(h)). Requesting a disability accommodation or protected leave is also protected.

What counts as an "adverse action"

Firing is the obvious one, but retaliation also includes demotion, cut hours, a worse schedule or location, exclusion from opportunities, a sudden run of write-ups, or threats, including threats involving immigration status. A series of smaller actions can add up.

Building the record

• Keep a copy of your complaint and when and to whom you made it. Email or text creates a date stamp.
• Note who knew about the complaint, and when the treatment changed.
• Save performance reviews from before the complaint.
• Write down what you are told about the reasons for any action, as close to word for word as you can.

Deadlines

A Labor Code 1102.5 claim does not require filing with an agency first.