FAQ- RETALIATION
A: Various Federal and State statutes protect employees who engage in legally protected activity from "adverse employment actions" by their employers. For example, California Government Code 12940 prohibits an employer from retaliating against
any employee who resists or objects to discrimination or harassment, including those who file complaints, testify, or assist in any proceeding covered by the California Fair Employment and Housing Act. California Labor Code 1102.5 protects
employees who report to a government or law enforcement agency what they reasonably believe to be illegal conduct by their employer, or who refuse to participate in what they reasonably believe to be illegal activity by their employer, while California Labor Code 44110 protects
school employees who report improper governmental activity. Similiar statutes apply to Community Colleges and Districts, or any governmental employee who reports illegal conduct by the government.
California Health and Safety Code 1278.5 protects
health care workers who notify government agencies of suspected unsafe patient care and conditions. The federal Sarbanes-Oxley Act protects
employees who report violations by their employers of federal corporate compliance laws. The Federal Medical Leave Act and the California Family Rights Act prohibit employers from retaliating against
employees who take protected leave and from interfering with their employees taking of leave.
In general, the conduct by the employee must be legally protected by a statute, law or regulation, and the retaliation must rise to the level of "an adverse employment action". An employee who complains internally or externally (e.g., to a government agency) about illegal conduct that violates a statute, regulation, or the expressed public policy of the State, and is thereafter terminated or disciplined, may have recourse to sue for
"wrongful termination" or "wrongful discipline" despite his/her at will status.
A: No, although a "
wrongful termination" can be retaliation. Other examples of retaliatory conduct include demotions, pay cuts, and transfers to less desirable jobs even if not accompanied by a pay cut. Less obvious examples include the creation of an abusive working environment for the employee, attempts to "paper a file" when such is unwarranted, a reduction in job duties or status, or other similar actions that make working more difficult and/or unpleasant than it had been. The Court will make the determination as to whether the employer engaged in actionable retaliation based on the "totality of the circumstances". Usually, isolation or ostracism, or rudeness, by itself, will not be enough.
A: It depends on the specifics of your case. Generally, if you can show that you engaged in legally-protected conduct by statute, law, or regulation, and you suffered an "adverse employment action(s)" because you engaged in the legally-protected conduct, then there is a good chance that you do.
A: Again it depends on the specifics of your case, but generally, if the employer knew of your complaints or legally-protected conduct, the retaliatory conduct began shortly after your complaints and otherwise you were a good performer and worker, with no other viable reason for the adverse actions, you should have a good chance to prove your case. Typically, proof of legally-protected conduct, knowledge by the employer of your legally-protected conduct, and the timing of the retaliatory conduct are the critical elements in having a viable case.
A: There are time limits on when you can file a lawsuit for retaliation, and some claims require filing of administrative complaints before you can file a lawsuit. If you think you are the victim of illegal retaliation, you should contact
The Ungerman Law Offices to see if you have any recourse and a discussion of your options.