Are You Experiencing Workplace Retaliation?

Often, it can feel like our employer is retaliating against us. In many cases, such retaliation is illegal and California state law offers protections against it. In order to know whether we are protected against workplace retaliation it is first important to understand what exactly it is. The fact of the matter is that while employers benefit from keeping employees quiet about their illegal activities or toxic work environments, any actions taken to further this end are illegal. Employees have the right to advocate for themselves and their needs by requesting reasonable accommodations, reporting incidents of discrimination and harassment to human resources and the appropriate government agencies, and participating in civil rights and human resources investigations. Employees have a right to work in a safe, supportive, and legally-run workplace. Any efforts to quash such pursuits can likely be seen as retaliation.

What is Workplace Retaliation?

The legal definition of workplace retaliation under California law involves an employee experiencing adverse employment action or treatment after engaging in a protected activity. For instance, if an employee participated in a human resources investigation of their department and then suddenly began receiving negative performance reviews, this may be an indicator that their employer is retaliating against them based on their participation in a protected activity.

Forms of Workplace Retaliation

Some forms of retaliation are more obvious than others. For instance, if an employee is fired following their participation in a protected activity, they likely have a case for wrongful termination. In other cases, employers may instead try to make the employees’ working conditions so intolerable that they will be forced to quit on their own (meaning they can avoid red flags as well as severance pay). In this case, the employee may still have a case for wrongful constructive termination.

Some more subtle forms of employer retaliation may include:

• Negative performance reviews;
• Increased or impossible workload;
• Being reassigned to less desirable office, location, shifts, or job duties;
• Being excluded from critical meetings, conversations, emails, and correspondence, making it impossible for you to successfully perform your job duties;
• Suddenly receiving write-ups for groundless or invented disciplinary actions (likely creating grounds to terminate you “for cause”);
• Being denied or passed over for promotions that you were previously promised or otherwise qualified for.

What are Protected Activities?

Protected activities are fairly broad, but include all of the following:

• Whistleblowing activities. These include reporting suspected criminal activity of the employer to a governmental or law enforcement agency, reporting suspected violations of state or federal laws or regulations to a supervisor or appropriate authority at the business who has the authority to investigate the matter, and testifying before a court or government body investigating possible violations by the employer.
• Opposing or Reporting Harassment and Discrimination. Harassment and discrimination on the basis or a protected status is illegal, and taking action to oppose or prevent it, without retribution from your employer, is your legal right. This also includes filing a complaint or taking action against improper denials of family/medical leave and pregnancy discrimination.
• FEHA Investigations. Making a report based on or participating in an investigation in accordance with the California Fair Employment and Housing Act is a protected activity.

Talk to a San Jose Employment Attorney

If you have suffered adverse employment effects as a result of participating in a protected activity, contact a San Jose employment lawyer at the Costanzo Law Firm today for a free, personalized consultation, and find out how we can help you get the compensation you are entitled to.

Resource:

shrm.org/resourcesandtools/tools-and-samples/toolkits/pages/californiapreventingunlawfulworkplaceretaliation.aspx