Employees should never be afraid of speaking up in the workplace about unethical behaviors or to participate in an investigation. In fact, employees are protected under the law from retaliation for taking part in a protected activity.
Employment retaliation happens when employers punish employees for making workplace complaints or taking part in an investigation. In the state of California, the California Labor Code section 1102.5 addresses workplace retaliation. Under the law, employers cannot use any form of prevention policy or punishment to preclude workers from providing information to law enforcement or government agencies or to force employees to engage in activities that violate state or federal laws and regulations.
Actions of retaliation extend beyond terminating or demoting an employee. Retaliation can also include disciplinary action, reassignment, salary changes, or unfairly preventing an employee from participating in a flexible work schedule environment. Retaliation can be overt or very subtle. Employers can even continue to retaliate against terminated employees by preventing them from accessing unemployment benefits or acting as an unfairly negative reference to future employers.
Proving Employment Retaliation
Employees should always feel comfortable providing honest information during investigations or speaking out against an injustice in the workplace. If an employer’s actions change after an individual has spoken out, and the actions are unreasonable when compared with typical workplace decisions, a case for employment retaliation may be made.
To prove retaliation, three things must be evident:
- An employee was taking part in a protected activity (filing a complaint, participating in an investigation, etc.)
- The employer acted differently (negatively) towards the employee as a result.
- There is a clear causal connection between the employee’s participation and the employer’s actions.
Employees do not have to be formally part of the complaint process to successfully show employer retaliation. He or she must only have notified the employer of the situation and have reasonably believed that the situation (harassment, discrimination, etc.) was unlawful.
Steps to Take if You Believe You Are Being Retaliated Against
It can be difficult to differentiate between what your employer can and cannot legally do. When adverse actions affect your employment and become unprofessional, they are considered retaliatory.
Speak out if you believe you are being retaliated against. Talk to another management team member or an HR representative. Ask questions about the acts, specifically to determine if there is another reason for otherwise ambiguous actions like changing your shift hours, reassigning work, or giving a poor review.
Document your discussion with management and human resources. Any previous written documentation, verbal recordings, or witness accounts could also be evidence of retaliation. The information may be helpful in proving your case against an employer later on.
An employer may be retaliating subconsciously and correct the behavior once it has been pointed out. However, employers guilty of retaliation may deny the accusation. In this case, you may want to consult an attorney and file a complaint with Division of Labor Standards Enforcement. Filing a complaint may be a lengthy process. Having an experienced attorney helping you fill out the forms and conduct an independent investigation may help expedite the process.
Contacting an Attorney
The attorneys at Curran & Curran Law understand California employer retaliation law, and can help you determine if your situation is a case of employer retaliation. If so, our employment law attorneys can help you file a complaint and hold your employer accountable. Taking action against an employer who has knowingly or unknowingly reacted to legally protected activities in a negative manner not only protects your work and work history; it prevents others from experiencing the same type of discrimination. Reach out to us to learn more about employer retaliation in San Diego.