What workplace retaliation looks like
Retaliation is when an employer punishes a worker for doing something the law protects, such as reporting a violation, complaining about unpaid wages or filing a workers’ compensation claim. The punishment does not have to be a firing. California’s Labor Code describes employees who are discharged, threatened with discharge, demoted, suspended or in any other manner discriminated against in the terms and conditions of their employment (Labor Code § 98.6(b)).
In practice, that can look like:
- A firing or layoff soon after you spoke up
- A demotion, a lost promotion or a sudden string of bad reviews
- Fewer hours, a worse shift or a schedule change that cuts your pay
- A move to a worse location, crew or assignment
- Threats to fire you, report you or cut your hours if you keep complaining
California also protects a worker whose family member made a protected report or complaint (Labor Code §§ 98.6(e), 1102.5(h)).
Retaliation and wrongful termination
An employer cannot fire someone for a reason the law forbids, and a firing that punishes protected activity is a form of wrongful termination. Our employment litigation page covers the other kinds of unlawful treatment at work.
Protected activity under California law
Several California laws protect workers from retaliation. Which one applies depends on what you did before your employer acted against you.
Reporting a violation of the law
California’s whistleblower law bars an employer from retaliating against an employee for disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee with authority to investigate or correct the problem, if the employee has reasonable cause to believe the information shows a violation of a state or federal statute or regulation. That protection applies whether or not reporting is part of your job. The same law protects an employee who refuses to take part in an activity that would break a state or federal law or regulation (Labor Code § 1102.5(b), (c)).
The law also helps whistleblowers with proof. Once an employee shows that the protected activity was a contributing factor in the employer’s action, the employer must prove by clear and convincing evidence that it would have taken the same action for legitimate, independent reasons anyway (Labor Code § 1102.6). That is why a whistleblower retaliation lawyer in Oakland will look closely at timing and at the reasons your employer gives.
Complaining about unpaid wages
An employer may not fire, discriminate or retaliate against a worker who made a written or oral complaint that they are owed unpaid wages, or who filed a claim with the Labor Commissioner (Labor Code § 98.6(a)). If the employer takes adverse action within 90 days of the protected activity, the law presumes in the employee’s favor, though the employer can try to rebut that presumption (§ 98.6(b)(1)). See our wage and hour page for the underlying pay claims.
Opposing harassment or discrimination
Under the Fair Employment and Housing Act, it is unlawful to discharge, expel or otherwise discriminate against a person for opposing practices the Act forbids, or for filing a complaint, testifying or assisting in a proceeding under it (Government Code § 12940(h)). That covers a worker who reports sexual harassment or discrimination and then is pushed out.
Filing a workers’ compensation claim
An employer may not fire, threaten to fire or discriminate against an employee for filing, or saying they intend to file, a workers’ compensation claim, or for receiving a rating, award or settlement (Labor Code § 132a). These claims are filed as a petition with the Workers’ Compensation Appeals Board. Our workers’ compensation lawyers handle the injury claim itself.
Reporting unsafe working conditions
A worker who makes an oral or written complaint about safety or health to the Division of Occupational Safety and Health (Cal/OSHA), another agency, the employer or the employee’s representative is protected from discharge and discrimination. So is a worker who reports a work injury or illness or serves on a workplace safety committee (Labor Code § 6310).
Using paid sick leave
An employer may not deny the right to use accrued sick days, or fire, threaten, demote, suspend or discriminate against an employee for using them or trying to use them (Labor Code § 246.5(c)(1)). If the employer acts within 30 days of a complaint, cooperation with an investigation or opposition to a sick leave violation, the law presumes the action was retaliation (§ 246.5(c)(2)). Using sick leave to care for a sick family member is protected too (§ 233(c)).
Deadlines to file a retaliation claim
Each type of retaliation claim has its own agency and its own clock. Other claims, including a lawsuit in court, can carry different deadlines.
Civil Rights Department: three years
For retaliation under the Fair Employment and Housing Act, a complaint with the California Civil Rights Department must be filed within three years of the unlawful practice (Government Code § 12960(e)(5)). The Department says that in employment cases you must get a Right to Sue notice from it before filing your own lawsuit. After the notice, the lawsuit must be filed within one year (§ 12965(c)(1)(D)).
Labor Commissioner: one year
A worker who was fired or punished in violation of a law the Labor Commissioner enforces, such as the wage complaint, whistleblower, safety or sick leave laws, may file a retaliation complaint within one year after the violation. The one year can be extended for good cause (Labor Code § 98.7(a)(1)). The Labor Commissioner’s Office says it does not ask about immigration status and does not need a Social Security number to take a retaliation complaint.
Workers’ comp retaliation: one year
A petition under Labor Code § 132a must be filed with the Workers’ Compensation Appeals Board no more than one year from the discriminatory act or the date of termination.
Evidence to keep and what to do now
Retaliation cases often turn on timing and on paper: what you reported, when, and what changed afterward. Start collecting what you can lawfully keep.
What to keep
- Your complaint or report, and any reply, in email, text or letter form
- Pay stubs, time records and schedules from before and after you spoke up
- Performance reviews, write ups and any praise you received
- The termination letter, demotion notice or schedule change
- Names and phone numbers of coworkers who saw or heard what happened
- A dated timeline you write yourself, while the details are fresh
What to do, and what to avoid
Put complaints in writing
If you raised a problem out loud, send a short, factual email that confirms what you reported and to whom.
Do not take confidential company files
Keep your own records, but ask a lawyer before copying documents that belong to your employer.
Do not sign anything yet
A severance agreement or release can give up your claims. Have a lawyer read it before you sign.
Watch the calendar
Note the date of each report and each change at work, because the deadlines run from those dates.
What you can recover
The remedies depend on the law your employer broke. The statutes themselves provide for:
- Reinstatement and back pay. Your job back, plus reimbursement for lost wages and work benefits (Labor Code §§ 98.6(b)(1), 132a, 6310(b)).
- Civil penalties. Up to $10,000 per employee for each violation of the whistleblower law or of § 98.6, awarded to the employee (Labor Code §§ 1102.5(f), 98.6(b)(3)).
- Increased workers’ compensation. For § 132a retaliation, the worker’s compensation is increased by one half, up to $10,000, plus costs and expenses up to $250.
- Sick leave remedies. Reinstatement and actual damages or one day’s pay, whichever is greater (Labor Code § 233(d)).
- Attorney’s fees. A court may award reasonable attorney’s fees to a worker who wins a whistleblower case (§ 1102.5(j)) or a case under the Fair Employment and Housing Act (Government Code § 12965(c)(6)).
Your free consultation
The first consultation is free. You tell us what happened at work, and a lawyer explains which laws may apply, what the deadlines are and what we would do next. If we take your case, we explain how fees and costs would work before you decide to hire us.
Calling costs nothing, so you can call before you know whether you have a case.
Why workers call our office
John E. Hill opened this firm in Oakland in 1973. Six attorneys work from one office on Hegenberger Road, near the Coliseum and the airport, and you talk with the lawyer handling your case. John is a member of the American Board of Trial Advocates and a Board Certified Civil Trial Advocate (National Board of Trial Advocacy). Your consultation and your case can be handled in English or Spanish, and your call is answered day or night.
The National Board of Trial Advocacy is not affiliated with any government authority.
Employment litigation Wage and hour Sexual harassment Civil rights
Retaliation questions
01Can I be fired for complaining about unpaid wages?
No. California protects a written or oral complaint that you are owed unpaid wages. If your employer takes action against you within 90 days, the law presumes the action was retaliation, and the employer has to rebut that.
02I only told my supervisor, not the government. Am I still protected?
Often, yes. The whistleblower law covers reports to a person with authority over you, or to another employee who can investigate or fix the problem, as long as you had reasonable cause to believe the law was being broken.
03How long do I have to file?
It depends on the claim. A Labor Commissioner retaliation complaint is due within one year of the retaliatory act, and a workers’ comp retaliation petition within one year. A Civil Rights Department complaint for harassment or discrimination retaliation is due within three years. Call early so no deadline slips by.
04My employer says I was let go for performance. Can I still have a case?
You may. Employers rarely say they are retaliating. In a whistleblower case, once you show your report was a contributing factor, the employer must prove by clear and convincing evidence that it would have let you go anyway.
05What does it cost to hire you?
Nothing. The first consultation is free. If we take your case, we explain how fees and costs would work before you decide to hire us.
Another question? Call (510) 588-1000 or use our contact page.