Can You be Punished for Testifying Against Your Employer?

Let’s say that you are at work, minding your own business, and then it comes: you get a notice that you are being called to testify as a witness. That’s not a problem, except for one thing: the Defendant being sued is your employer, meaning that someone has subpoenaed you to provide testimony against your own employer.

On the one hand, you will be sworn to tell the truth, under oath, when you do testify or give your deposition. On the other hand, you like your job, and don’t want to be fired or punished, as you imagine you will if you do have information that will be harmful to your boss or employer.

You Can’t be Punished

California and federal law will provide some protection for you in this situation. The law makes it illegal for your employer to punish you in any way, if you are participating in an investigation regarding harassment or other illegal activities that your employer may be engaging in.

In fact, you can’t even be punished for testifying against another employer—that is, a company that you don’t even work for. You may wonder why your employer would care if you provided damaging testimony against another company, but it does happen—in fact, in 2021, the Department of Labor settled a retaliation lawsuit against a company when the company retaliated against an employee, for testifying against another company the employee didn’t actually even work for.

All of these protections stem from retaliation laws, both state and federal, which prohibit punishing an employee for doing something the employee otherwise has a legal right or legal obligation to do.

Protection Just for Participating

Even if you aren’t providing particularly damaging testimony about your employer, you may have concern for punishment just for missing work to be a witness.

Again, you don’t have to worry about this either. As a witness, you will be under a subpoena—a legal document that you and your employer must cooperate with, by allowing you to abide by the subpoena and provide testimony.

Because you only need to be under subpoena in order for the protection to apply, the lawsuit doesn’t even have to be one related to employment discrimination. So, for example, if you were testifying against your employer in a personal injury case, and your employer punished you for testifying against it, you would have a cause of action against your employer for retaliation.

This protection applies no matter what proceeding you are participating in—in other words, whether you are testifying in a full blown trial, whether you are testifying at a deposition, or whether you are in any proceeding in any informal government investigation.

And remember that punishment in the form of retaliation doesn’t just mean firing. It can mean demotions, or being excluded from career advancement opportunities, or being left out of training opportunities.

Are you being punished or retaliated against for participating in a legal case or providing testimony? Contact the San Jose employment attorneys at the Costanzo Law Firm today.

Sources:

dir.ca.gov/dlse/howtofilelinkcodesections.htm

eeoc.gov/newsroom/legacy-land-management-southern-coal-and-affiliates-pay-50000-settle-eeoc-retaliation