Should You Contact An Attorney For A Retaliation Lawsuit?
An employee may decide that it is safer not to exercise their rights to report illegal working conditions in order to avoid retaliation in their workplace. At The Hanrahan Firm in San Diego, we understand how important it is to hire a workplace retaliation lawyer in the event that you feel your employer is not being accountable or punishing you for reporting unlawful conduct.
You are advised to hire an attorney for any of these types of retaliation:
- Getting fired for reporting an illegal act
- Receiving a negative evaluation for filing a legitimate complaint
- Given harder duties or being let go because you complained about sexual harassment
- Changing your schedule because you reported discrimination
We will fight for you if you were terminated, suspended or otherwise discriminated against because you opposed any unlawful conduct, or testified or assisted in proceedings, under the California Fair Employment and Housing Act (FEHA). Employees have a right to oppose unlawful conduct, and employers cannot base any treatment of an employee on that opposition.
There are many types of whistleblowing, from reporting the dumping of chemicals in waterways or other environmental fraud, to healthcare system exploitation. Another problem area deals with violations to employee liberties regarding the Family and Medical Leave Act (FMLA); such as companies firing employees for getting pregnant, raising children or taking care of sick family members. As employment law attorneys, we vow to protect your rights in any of these matters.
Employees have the legal right to disclose information that may reveal a violation of federal or state law. If an employee believes their employer is acting illegally, they have the right to report it internally or externally. Employers are prohibited from retaliating against whistleblowers for disclosing such information. Whistleblower protection is an important part of making sure companies comply with the law and we are here to help.
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Q. What conduct is considered a “protected activity?”
A. Employers are prohibited from retaliating against employees due to employees’ complaints of legal violations by the employer, or due to employees’ complaints that the employer has violated public policy. For example, employers are required to pay employees proper overtime compensation. It would be illegal for an employer to terminate an employee for his or her complaint of not being paid proper overtime compensation. That complaint of failure to pay overtime compensation is a “protected activity” under California law. Likewise, complaints of violations of the Fair Employment and Housing Act (i.e. complaints of sexual harassment or race discrimination) are protected complaints.
Q. Are employees who oppose conduct that they believe is illegal protected from retaliation if the conduct turns out to not be illegal?
A. Yes, if the employee making the complaint has a good faith belief that the conduct was unlawful. In other words, the law protects employees who complain about suspected violations of law, even if it turns out the employee was wrong about the conduct being a violation of law. Again, this is as long as the employee had a good faith belief that the employer’s conduct was illegal.
Q. My wife and I work for the same employer and she feels that she is a victim of gender-based pay discrimination but is afraid to complain. If I make the complaint on her behalf, or complain about the violation in general, am I safe from retaliation?
A. Yes. As long as you oppose the unlawful discrimination, you are protected by law from retaliation. To be protected from retaliation, the discrimination for which you complain does not have to be directed at you. However, you must engage in some sort of conduct to sufficiently oppose the discrimination, and your employer must have knowledge of that opposition. Employees sometimes make anonymous complaints, which can prove problematic in establishing that the employer knew that a specific employee made the complaint.
Q. I heard a supervisor make a racist comment, but I did not report it or say anything until human resources questioned me. I told human resources that I overheard the racist comment. Was my conduct protected?
A. Yes. The anti-retaliation protection applies to employees who discloses unlawful conduct, even if not on his or her own initiative. Therefore, truthfully answering questions during an employer’s internal investigation is sufficient to protect you from retaliation.
Q. I complained about racist statements that my boss made to me and the company reprimanded him. This boss then gave me false disciplinary warnings. Can I sue for retaliation?
A. Probably not, at least not yet. To establish a claim for retaliation, you must prove an adverse employment action. To qualify as an adverse employment action, the employer’s actions must sufficiently alter the terms, conditions or privileges of employment. Every case is unique, but a write-up by itself is generally insufficient to establish an adverse employment action. If the false write-up results in a suspension or a blocked promotion (or something that otherwise causes you economic harm), a court may find that the employer’s actions are sufficient to support a retaliation claim.
Q. What is an example of an actionable adverse employment action that is something less than a discharge?
A. This requires an analysis of the specific facts. Generally, tangible adverse employment actions may include a transfer to an undesirable location, a demotion, a significant loss in responsibility, a decrease in pay, or assignment to an undesirable shift.
Q. What kind of evidence does an employee need to prove retaliation against a company?
A. First, the employee must prove that he or she engaged in a protected activity. The employee must also prove that he or she suffered an adverse employment action due to the protected activity. Employers rarely admit that they took adverse action because an employee engaged in a protected activity. Therefore, the employee must generally prove a connection between the protected conduct and the employer’s adverse action with circumstantial evidence. This could include temporal proximity, failure to investigate the employee’s complaint, or a blatantly false reason proffered by the employer for taking the adverse employment action. Generally, the strongest evidence in establishing causation is being able to prove the lack of truth in the company’s stated reason for the adverse employment action.
Q. How close in time must the adverse employment action be, in order to suggest unlawful retaliation?
A. Time is one of the most important evidentiary considerations to causally connect a protected activity with an adverse employment action. Courts have routinely dismissed retaliation claims where the adverse action occurred too long after the protected activity. In many cases, the employer may take less drastic adverse actions early on, such as an immediate, unwarranted reprimand. Even though a reprimand might be insufficient for a retaliation claim by itself, it may be the proof needed to connect a termination months later to the employee’s protected activity.
Q. What sort of unequal treatment is necessary to prove retaliation?
A. The evidence of discriminatory intent is the same as that used to prove gender, age, race and other types of discrimination. For example, an employer may retaliate against an employee by treating him or her differently from, and worse than, other similarly situated employees who did not engage in a protected activity. For example, if an employer stops offering overtime shifts to an employee who complained about the company’s failure to pay overtime wages, that may be sufficient unequal treatment to support a retaliation claim.
Q. If an employer gives an employee a false reason for terminating him, how can the employee prove the real reason was retaliation?
A. This is one of the most difficult parts of proving a retaliation or wrongful termination claim. This step is referred to as proving that the employer’s stated reason for an adverse employment action is pretext. The employee needs to show that the reason offered by the employer is false. This is done by showing that the reason is contradictory, implausible, uninformed or baseless. If the employee has proof of pretext, a jury can conclude that the real motive behind the employer’s action was unlawful retaliation.
Q. How could the employer’s failure to investigate the employee’s complaint show retaliation?
A. Generally, an employer should take every employee’s complaint of unlawful conduct seriously, and therefore should investigate every legitimate employee complaint. A failure to conduct an adequate investigation may indicate that the employer resented the fact that the employee made it. A failure to properly investigate, coupled with a sufficient adverse employment action may support a claim for unlawful retaliation.
Q. What should I do after making a complaint to my employer?
A. First, it is important that an employee does not give the employer any justification to legitimately terminate him or her. An employee is not absolutely protected from termination or discipline because he or she made a protected complaint. The law only prohibits the employer from terminating or disciplining the employee because of the protected complaint. Therefore, if an employee makes a protected complaint, and then fails to report for work shifts for a week or gets into a physical altercation in the workplace, the employer can legally terminate that employee. Therefore, after making a complaint, the employee should be a model employee. The employee should also keep a record of everything that happens to him or her following the complaint. This includes keeping documents and emails that back up the complaint and violation. It is oftentimes useful for the employee to communicate in writing (i.e. email) to create a paper trail and proof that the employer received the communications.