Retaliation Law in California

This page details California’s workplace retaliation laws. We’ve prepared this page to help non-lawyer asmployees understand what their employment rights are and when they should contact a retaliation lawyer. While this page is not a substitute for speaking with an employment lawyer, it should give you an idea if you have a claim that should be investigated further.

This whiteboard video was made by a lawyer Mr. Odell went to school with. It gives a wonderful overview of CA’s retaliation law.

Specifically, this page details:

  • The major areas of CA’s retaliation laws
  • Retaliation for opposing discrimination & harassment
  • Retaliation for filing a complaint, testifying, or assisting in any proceeding under FEHA
  • Retaliation for reporting suspected patient abuse
  • What is the difference between retaliation, wrongful termination, and a whistleblower case?
  • What can you recover in a retaliation lawsuit?
  • Average verdicts and settlements in retaliation cases
  • How much does a retaliation lawyer cost?
  • Statutes of limitations for retaliation lawsuits
  • When should you consult with a retaliation lawyer?

Summary of CA’s Main Retaliation Laws

“Retaliation” is a word that gets casually thrown around a lot by employees. While it has a specific legal meaning, generally the word describes the following: employer vengeance against an employee who tried to do the right thing. For the most part this “vengeance” takes the form of a termination. There are three main types of retaliation:

  1. Retaliation for opposing discrimination or harassment,
  2. Retaliation for filing a complaint with a governmental agency or testifying in a court proceeding, and
  3. Retaliation for reporting suspected patient abuse.

Retaliation for Opposing Discrimination or Harassment

California has set up a wonderful anti-retaliation law. CA Government Code § 12940(h) states that it is an unlawful employment practice:

“for any employer… to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part….”

The practices that are forbidden “under this part” include discrimination or harassment on the basis of race, religion, sex, disability, gender, military status, pregnancy, age, ethnicity, or sexual orientation. Basically, if you take steps to oppose employer discrimination or harassment on the above grounds, and the employer punishes you for it, you may have a claim for retaliation.

What does it mean to “oppose” discrimination or harassment? That is open for interpretation. Certainly, it would be opposition to write a complaint to HR or a supervisor. Likewise, it would be opposition to confront the person participating in the harassment or discrimination. But claiming opposition and proving it in court are two different things. It’s obviously easier to show that you’ve opposed something if you’ve done so in writing (email, text message, chat, or letter). Therefore, it is highly recommended that you oppose any such practices in writing.

The California Code of Regulations 2 CCR § 11021 has released more guidances by stating that “opposition” includes:

  • Seeking the advice of the DFEH or DFEH Council…,
  • Assisting or advising any person to seek the advice of the DFEH,
  • Opposing employment practices that an individual reasonably believes to exist and believes to be a violation of CA’s harassment & discrimination laws,
  • Participating in an activity that is perceived by the employer as opposition to discrimination, whether or not the employee intended to oppose, or
  • Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination.

Filing a Complaint with a Governmental Agency or Testifying in a Court Proceeding

This is fairly self-explainatory. Basically, CA Government Code § 12940(h) also states that it is an unlawful employment practice “for any employer… to discharge, expel, or otherwise discriminate against any person because the person has… filed a complaint, testified, or assisted in any proceeding under this part.” The purpose of this clarification is make clear that if you file a claim with a governmental agency, or testify in a court case, you are protected.

Again, the California Code of Regulations further clarifies this by stating that it is unlawful for an employer to terminate you for:

  • Contacting, communicating with or participating in the proceedings of the DFEH due to a good faith belief that CA’s harassment & discrimination laws were violated; or
  • Being involved as a potential witness, which an employer or other covered entity perceives as participation in an activity of the [DFEH].

Reporting Suspected Patient Abuse

It is also an unlawful employment practice for any employer to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report under Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.[1]

What is the Difference Between a Retaliation, Wrongful Termination, and Whistleblower Case?

From a non-lawyer’s point of view, these three areas of law are easily confused. Here is a quick description of the differences. If you want more information, follow the links to the exact page and you’ll find plenty of information on point.

As should be clear from above, a retaliation case generally involves terminating an employee for opposing discrimination, harassment, or patient abuse. A wrongful termination may be much broader. A wrongful termination case involves a termination for something that violates “public policy.” This may include a termination for complaining about unsafe working conditions or complaining about co-worker threats of violence. Neither of these would be encompassed by CA’s retaliation laws.

A whistleblower case is also different. A whistleblower case generally involves a specific statute, such as Labor Code § 1102.5 (refusing to violate the law or reporting a violation of law) or Health & Safety Code § 1278.5 (complaining about patient safety).

What Can You Recover in a Retaliation Lawsuit?

Retaliation Law Information & Retaliation Lawyer Your Economic Losses – If you win at trial, you may recover economic damages which are the wages you would have earned had you not been fired. For example, if you were earning $70,000 per year but then got fired because you opposed sexual harassment, you may can recover the amount of money you would have earned had you not been terminated.

Your Emotional Distress – This includes the pain and suffering caused by the unlawful retaliation. Generally, emotional distress damages include depression and mental suffering. Often people suffer from sleeplessness, uncontrollable crying, stress, diarrhea, and loss of enjoyment of life. In order to prove these damages you must be able to describe them. It is very helpful if you visit a therapist and the symptoms are documented.

Attorney’s Fees – In some retaliation claims you may recover your attorney’s fees. This is a significant hammer and incentive for defendants to settle in these legal matters.

Punitive Damages – In order to win punitive damages in a retaliation suit, you must show that the employer acted with oppression, fraud or malice. This is an extremely difficult standard to meet. Even if you win them, they are limited in size by Supreme Court cases.

What is the Average Settlement in a Retaliation Case?

It is impossible to answer this question. First of all, 95% of employment cases settle and the parties are bound to keep the settlement terms confidential. Second, many lawsuits have overlapping claims and it is difficult to pinpoint what value is attributed to the “retaliation claim” versus another claim. Third, every case is different. Case value is greatly affected by the attorneys involved, the people involved, the facts at issue, the judge, jury, and everyone’s biases.

How Much Does a Retaliation Lawyer Cost?

Employment lawyers who represent employees usually get paid via a contingency fee. This means the lawyer is paid a percentage of whatever you recover in your case. So if the lawyer charges 40% of your gross earnings, and you settle for $100,000, the lawyer would get paid $40,000. You do not pay the lawyer out of pocket and he or she only gets paid if they recover money for you.

Attorney’s who work under the contingency structure also, usually, front the case expenses for you. That means they pay money to litigate your case, and they recover those expenses at the end of the case.

What is the Statute of Limitations for a Retaliation Lawsuit?

Generally, you have one year from the retaliatory act (usually this is the termination or demotion) to acquire a right to sue letter from the Department of Fair Employment & Housing. After that, you have one year to file your case in state or federal court. Usually, your lawyer will acquire this right-to-sue letter for you. The statute of limitations is different for employees of public entities. Sometimes, the statute of limitations can be as short as six months, so you should contact a lawyer as soon as you’ve been retaliated against.

When Should You Consult With a Retaliation Attorney?

You should call as soon as possible. Not only is a statute of limitations ticking, but memories fade and witnesses lose contact. This Los Angeles law office gives everyone a free consultation. There is no obligation. We just want to talk with you, so give us a call as soon as possible.

[1] California Government Code § 12940(g)