Quick Answer: Illegal employer retaliation happens when an employer takes adverse action against an employee because the employee exercised a legally protected right. Common examples include termination or demotion, reduced hours or pay, sudden discipline or negative reviews, schedule changes or reassignments, exclusion or increased scrutiny, and threats or intimidation.
Speaking up at work can feel risky, even when you know you are doing the right thing.
Maybe you reported harassment, complained about unpaid wages, requested protected medical leave, or reported something you reasonably believed was illegal. Then, not long afterward, something changed.
Your hours were cut. You suddenly started getting written up. You were excluded from meetings, passed over for a promotion, demoted, or even terminated.
When an employer takes action against an employee because the employee exercised a legally protected right, it may be unlawful retaliation.
At Gomerman | Bourn & Associates, we represent California employees in retaliation and other workplace matters. Retaliation is not always obvious. Sometimes it is disguised as a performance issue, scheduling decision, or a routine business change.
Knowing what to look for can help employees recognize when something may not be right.
Key Takeaways
- Retaliation is not always obvious. It can be disguised as a performance issue, a scheduling decision, or a routine business change.
- Protected activity can include reporting harassment or discrimination, complaining about unpaid wages, requesting protected leave or a reasonable accommodation, and reporting conduct you reasonably believe is illegal.
- Retaliation does not always mean getting fired. Reduced hours or pay, sudden discipline, reassignments, and exclusion can also be adverse actions.
- Timing can be important evidence, but timing alone does not prove retaliation.
- Deadlines differ by claim: certain CRD claims generally have a three-year filing period, while many Labor Commissioner retaliation complaints must be filed within one year.
- Document dates, conversations, witnesses, and changes to your job, and do not wait too long to seek legal advice.
What Is Protected Activity?
California law protects employees from retaliation for exercising many workplace rights. Depending on the circumstances, protected activity may include:
- Reporting discrimination or harassment
- Complaining about unpaid wages, overtime, or missed breaks
- Requesting or taking legally protected leave
- Requesting a reasonable accommodation
- Reporting conduct you reasonably believe violates the law
- Participating in certain workplace investigations
- Refusing to participate in unlawful conduct
- Discussing wages with coworkers
- Filing a workers’ compensation claim
Many protections apply when an employee raises concerns internally with a supervisor or HR, rather than with a government agency.
What Can Retaliation Look Like?
Retaliation does not always mean getting fired. Depending on the circumstances, it can include:
Termination or Demotion
Being fired, demoted, or having significant responsibilities taken away after engaging in protected activity may be retaliation.
Reduced Hours, Pay, or Opportunities
A sudden reduction in hours or pay, loss of overtime, or being passed over for a promotion or other opportunity may be retaliation.
Sudden Discipline or Negative Reviews
An employee who previously had a good performance history may suddenly begin receiving write-ups, warnings, or negative evaluations after making a complaint.
Schedule Changes or Reassignments
A significant change in shift, location, schedule, or responsibilities can be retaliation.
Exclusion or Increased Scrutiny
Being left out of important meetings or communications, closely monitored, or suddenly held to different standards than coworkers may also be relevant.
Threats or Intimidation
Threatening or intimidating an employee because they exercised a protected workplace right can also raise serious retaliation concerns.
| Form of retaliation | What it can look like |
|---|---|
| Termination or demotion | Being fired, demoted, or stripped of significant responsibilities after engaging in protected activity |
| Reduced hours, pay, or opportunities | A sudden cut in hours or pay, loss of overtime, or being passed over for a promotion |
| Sudden discipline or negative reviews | Write-ups, warnings, or negative evaluations after a complaint despite a good performance history |
| Schedule changes or reassignments | A significant change in shift, location, schedule, or responsibilities |
| Exclusion or increased scrutiny | Being left out of important meetings, closely monitored, or held to different standards than coworkers |
| Threats or intimidation | Threatening or intimidating an employee for exercising a protected workplace right |
None of these actions automatically proves retaliation. The important question is whether the employer took adverse action because of the employee’s protected activity.
Does Timing Matter?
Yes, but timing alone does not prove retaliation.
If an employee makes a complaint and is terminated shortly afterward, the timing may be important evidence. But other facts matter too, including whether the decision-maker knew about the complaint, the employee’s previous performance history, how other employees were treated, and whether the employer’s explanation for its decision is consistent with the evidence.
The entire picture matters.
If you believe you were fired, demoted, disciplined, or otherwise treated differently because you exercised a legally protected right, Gomerman | Bourn & Associates can help you understand your options.
What Should You Do if You Suspect Retaliation?
If something at work suddenly changes after you exercise a protected right, document what is happening.
Keep track of dates, conversations, witnesses, changes to your job, and relevant emails or other records you are lawfully entitled to retain.
It is also important not to wait too long to seek legal advice. Different California retaliation claims have different filing deadlines. For example, certain claims handled by the California Civil Rights Department generally have a three-year filing period, while many retaliation complaints within the Labor Commissioner’s jurisdiction must be filed within one year.
Because the applicable law and deadline depend on the circumstances, speaking with an employment attorney early can help you understand your options.
You Have the Right to Speak Up
Employees should not have to choose between protecting their workplace rights and protecting their jobs.
If you believe you were fired, demoted, disciplined, cut in pay or hours, or otherwise treated differently because you exercised a legally protected right, it may be worth taking a closer look at what happened.
At Gomerman | Bourn & Associates, we represent California employees in retaliation, discrimination, harassment, and wrongful termination matters.
Contact us for a confidential consultation to discuss your workplace rights.
Frequently Asked Questions
Does retaliation always involve being fired?
No. Retaliation can potentially involve demotion, reduced pay or hours, discipline, denial of opportunities, significant schedule or assignment changes, or other adverse employment actions.
Can I be protected if I complained to HR?
Yes, depending on the circumstances. Many California retaliation protections cover certain internal complaints as well as reports made to government agencies.
How long do I have to file a retaliation claim?
It depends on the law involved. Some California retaliation claims have significantly shorter deadlines than others, so employees should not assume they have years to act.
What if my employer says I was fired for poor performance?
Employers may take action for legitimate, non-retaliatory reasons. In a retaliation case, evidence such as timing, prior performance history, inconsistent explanations, and how other employees were treated may become important.
Sources & Resources
California Civil Rights Department, Workplace Retaliation Is Against the Law. (Workplace Retaliation Fact Sheet, California Civil Rights Department)
California Labor Commissioner’s Office, Retaliation and Discrimination Complaints. (Retaliation and Discrimination Complaints, Labor Commissioner)
California Labor Code §§ 1102.5 and 1102.6, Whistleblower Protections. On the official statute page, §§ 1102.5 and 1102.6 appear together in Chapter 5. (California Labor Code, Official Legislative Information)
California Government Code § 12940(h), FEHA Retaliation. Subdivision (h) contains FEHA’s retaliation provision. (California Government Code § 12940, Official Legislative Information)
California Labor Code § 98.6, Labor Code Retaliation. The Labor Commissioner also identifies § 98.6 as one of the statutes it enforces against retaliation. (California Labor Code § 98.6, Official Legislative Information)
This article is provided for general informational purposes only and does not constitute legal advice. Retaliation claims are highly fact-specific, and different laws may impose different legal standards and filing deadlines. Reading this article does not create an attorney-client relationship.
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