What is Retaliation?
Retaliation in the employment context arises when an employee engages in some form of "protected activity" and as a result the employer engages in one or more adverse employment actions as a result. Unlawful retaliation does not necessarily exist every time an employer takes an adverse action against an employee. The protected activity must be the reason the employer took the adverse employment action.
Protected Activities
There are various forms of protected activities. These are activities that the law says employees should have the freedom to engage in without fear of reprisal from their employers.
Opposing an unlawful practice
When an employee reasonably believes the employer is engaging in unlawful activity and reports the unlawful activity to those with responsibility, the employee generally engages in protected activity. For example, if an employee reports to human resources that health and safety laws are being violated, that report would be protected activity.
Participating in Proceedings
It is unlawful for employers to retaliate against employees for supporting other employees in internal or legal proceedings. For example, it would be unlawful for an employer to retaliate against an employee who testified that she observed her manager sexually harassing a fellow co-worker.
Statutory Whistleblowing
California Labor Code section 1102.5 makes it unlawful for an employer to retaliate against an employee for reporting violations of federal, state, or local laws, or rules or regulations. Such reporting must be made to a government or law enforcement agency, or to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance. This statute applies regardless of whether disclosing the information is part of the employee's job duties.
Adverse Employment Action
It is rare that managers will admit that the reason they took adverse employment action against an employee was because the employee engaged in protected activity. Generally, the employee must show that the adverse employment action took place after or simultaneously with the protected activity. Examples of adverse employment actions may include termination, demotion, denial of promotion, reduction in pay, change in schedule, harassment, hostile work environment, isolation, and defamation.
