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Getting Real About Retaliation

May 17, 2023 Discrimination

One of the most common questions people have is what to do if they have witnessed or experienced some kind of illegal activity in the workplace. This could include harassment, discrimination, criminal activity, or unethical conduct. No one wants to be branded as a troublemaker and most people are unwilling to do anything that will jeopardize their job. And while there are legal protections in place, it is important to understand precisely what you may be facing. If you are in this position and wondering what to do, an experienced employment lawyer can provide you with invaluable guidance.

Understanding Retaliation

Retaliation can be overt or subtle and can include more than just termination. Retaliation can include any adverse action taken against an employee in response to exercising their rights. Some examples of retaliation include the following: 

  • Denial of a promotion 
  • Transfer to a less desirable location
  • Demotion or reassignment to less desirable duties
  • Denial of bonuses or other benefits
  • Unfairly negative performance reviews
  • Harassment, intimidation, or threats

You may be confident that you will keep your job, but be aware that there are other retaliatory actions your employer may take against you if you choose to proceed with reporting unlawful activity in the workplace. 

Understanding the Law 

The fact that California is an “at-will employment” state creates considerable confusion for those who may be considering reporting unlawful conduct. While it is true that you can be terminated by your employer at any time and for any reason, at-will employment does not create an absolute liability shield for employers. There are several laws that protect employees in your situation. 

The Federal Whistleblower Protection Act

This is a federal law that protects federal government employees who disclose information or report conduct involving the following: 

  • Violations of any laws, rules, or regulations
  • Abuses of authority
  • Substantial dangers to public health or safety
  • Gross mismanagement or waste of funds

This law gives federal employees the right to file a lawsuit against their employer if they are retaliated against for reporting illegal or unethical conduct. 

California Whistleblower Protection Act

The California Whistleblower Protection Act does essentially the same thing as the federal statute but offers broader protections. For example, it also applies to private sector employees in addition to government employees. 

The California Fair Employment and Housing Act (FEHA)

FEHA gives employees the right to file a lawsuit for compensation who are retaliated against for actions such as the following:

  • Filing a complaint concerning discrimination or harassment
  • Requesting a workplace accommodation for your disability or religious beliefs
  • Opposing or standing up to acts of discrimination or harassment at work

Common Law and Other Statutes

There is also a large body of law that prohibits employers from retaliating against employees for engaging in the following actions: 

  • Exercising your constitutional or legal rights 
  • Refusing to engage in criminal activity
  • Performing an obligation mandated by law such as jury duty
  • Reporting unsafe work conditions
  • Filing a workers’ compensation claim or testifying on a co-worker’s worker’s compensation claim

Knowing whether the action you take will be protected by law can be complicated. Even if you are doing the right thing in a moral sense, do not assume that you are protected from retaliation under the law. You should instead seek advice from an employment lawyer concerning what steps you should take without compromising yourself. 

You Could Still Face Retaliation

It is important to emphasize that you may still lose your job or suffer other adverse consequences if you choose to take action, despite the fact that retaliation is often prohibited by law. One reason is that an employer who is engaging in unlawful conduct will be less worried about whether their actions will be deemed retaliatory than a more scrupulous employer. Another reason is that many employers think that they can make the issue disappear by terminating or otherwise “disciplining” the employee. 

Whatever the reason may be, you need to understand that what the statute does is provide a basis for seeking compensation from your employer who engages in retaliation. As a result, you could lose your job if you decide to move forward, but an employment lawyer can help you sue your employer for your lost wages, emotional distress, legal fees, and any other losses you may experience. 

So What Do You Do?  

Filing a lawsuit means that it may take months for your case to reach a conclusion. In addition, there is no guarantee of a successful outcome. You will need to prove your case, which is dependent upon having the right evidence. As a result, we strongly recommend that you consult with an employment lawyer before you take any steps that could jeopardize your job. 

In the meantime, there are some practical steps you can take in order to prepare to move forward: 

  • Assess your financial situation. Can you afford to be unemployed for any period of time? If not, you may want to build up your savings or work towards securing another job before moving forward. 
  • Update your résumé. Even if you are able to be unemployed for a few weeks, you will be expected to seek new employment. The sooner you can begin looking for a job, the better the impression you will make. Be prepared to immediately begin your job search in the event that you are terminated. 
  • Document the issue. If you decide to report whatever issue it is that you are experiencing, a well-documented complaint is much more likely to be taken seriously. Also, as mentioned above, you will need to prove your claim should your employer retaliate. 

Worried About Retaliation? Contact Attorneys for Employees Today

Whether you are worried about taking action that could result in retaliation or have already been retaliated against, you need experienced legal counsel who can help you protect your rights. Attorneys for Employees can help you navigate the way forward. Contact us today to schedule an appointment to discuss your case and how we can help.