Retaliation Law
California law protects employees from several types of retaliation, as discussed below.Retaliation under California’s Whistleblower Protection Act
California Labor Code section 1102.5
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STATUTE
“(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.
“(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
“(d) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised their rights under subdivision (a), (b), or (c) in any former employment.
“(e) A report made by an employee of a government agency to their employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b).
“(f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section.
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“(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.”
APPLICATION
Employees who stand up to illegal conduct in their workplace are known as “whistleblowers.”
California whistleblower laws protect public and private employees alike.
An employee meets their burden of proof under section 1102.5 if they prove that their protected activity was a contributing factor to the retaliation suffered. Thereafter, an employer may avoid liability by proving by clear and convincing evidence that the employee would have been discharged anyway at that time for legitimate and independent reasons. Labor Code Section 1102.6.
Retaliation that Violates California’s Fundamental Public Policies
Retaliation by an employer that violates California’s fundamental public policy is also illegal. Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090.
A public policy is “fundamental” when it meets the following tests: (1) It is “carefully tethered” to a policy “delineated in constitutional or statutory provisions”; (2) it involves a duty affecting the public at large, and it “ ‘well established ” and “sufficiently clear” at the time of the discharge. Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256.
Retaliation under California’s Fair Employment and Housing Act
STATUTE
“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.”
California Government Code Section 12940(h)
APPLICATION
A plaintiff claiming retaliation under the Fair Employment and Housing Act, or FEHA, must prove each of the following:
- The employee engaged in a protected activity;
- The company took an adverse employment action against them;
- The protected activity was a substantial motivating reason for the company’s decision to take adverse employment action against the employee;
- The employee was harmed; and
- The company’s conduct was a substantial factor in causing the harm.
Judicial Council of California Civil Jury Instructions (“CACI”) 2505.
Protected activity can come in many different forms. For example, if a person opposes any conduct forbidden by the FEHA or has filed a complaint that alleges violations of the FEHA, they have engaged in protected activity. Government Code §12940(h).
Common examples of adverse employment actions include termination, demotion, and failure to promote.
A “substantial motivating reason” is a reason that actually contributed to an adverse employment action and must be more than a remote or trivial reason. Moreover, it does not have to be the only reason motivating the adverse employment action. CACI 2507.
Common evidence relied upon to show this level of causation includes (1) circumstantial evidence showing retaliatory animus; (2) the fact that the decision-maker knew about that complaint; (3) comparator evidence showing that other employees were treated differently; and (4) the timing of the adverse employment action.