Retaliation in the Workplace
When a person does something right, he should be rewarded for it. Unfortunately, that isn’t always what happens at work. Generally speaking, “retaliation” occurs when an corporation reprimands or terminates an employee for making a protected complaint or report. While this page is not a substitute for speaking with a retaliation lawyer, it should give you an great idea if you have a good enough claim to warrant consulting with an attorney.
This webpage details the following topics:
- Definition of retaliation
- A quick look at California’s retaliation laws
- How to tell the difference between retaliation, wrongful termination, discrimination, and whistleblower Cases
- What can retaliation lawyers help you to recover?
- Filing a retaliation lawsuit
Definition of Retaliation
There are multiple definitions of workplace retaliation. CA’s laws on this can be found in multiple places and concern a variety of subjects. A layperson generally thinks of retaliation as a revenge or retribution. From a legal standpoint, this is incorrect. Retaliation as a legal term takes on a more specific meaning. It usually means that the employer terminated an employee because the employee made a protected complaint or report. Here is an example to solidify the distinction for you:
- It is completely legal for your boss to”retaliate” against you because you complained to HR about his micromanagement of an important assignment.
- It is illegal, on the other hand, for your boss to “retaliate” against you because you complained to HR about his racist comments at work.
The difference is obviously that one complaint is protected by law, the other is not (bosses are allowed to micromanage you).
A Quick Look at California’s Retaliation Laws
1. Complaining About Harassment or Discrimination
The most common anti-retaliation law is CA Government Code § 12940(h). This provision states that it is an unlawful employment practice:
“For any employer… to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”
When 12940(h) says “under this part” it means the entire statute.
The practices that are barred “under this part” are discrimination or harassment on the basis of disability, gender, race, religion, sex, sexual orientation, military status, or age. Basically, if you complain about or oppose discrimination or harassment, and your boss punishes you for it, you may have a good retaliation lawsuit to pursue.
2. Refusing to Violate a Law
Sometimes your boss will ask you to do something that is illegal. Most people will object, but end up doing the bad thing because they need their job. But when someone refuses to participate in illegal activities, it is unlawful for an employer to terminate you for that refusal. CA Labor Code § 1102.5(c) specifically says:
(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
3. Protesting an Unsafe Work Environment
California wants safe workplaces. There is an entire Division of the Labor Code that address workplace safety. Built into that section is Labor Code § 6310. Section (b) says:
(b) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has made a bona fide oral or written complaint to … governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, … of unsafe working conditions, or work practices, in his or her employment or place of employment, or has participated in an employer-employee occupational health and safety committee, shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. (emphasis added)
Basically, if you complain about workplace safety, and your employer punishes you for the complaint, you have been retaliated against. You can file a OSHA whistleblower case for protesting an unsafe work environment.
Furthermore, many wrongful termination cases are similar to retaliation cases. For example, if you complain about not being paid proper overtime wages, and your employer fires you, you would have a claim for wrongful termination. Since the termination is retaliatory, someone may call it retaliation. Regardless, it would be wise to consult with a lawyer as he or she will know the best laws that apply to your case.
The Difference Between Retaliation, Wrongful Termination, Discrimination and Whistleblower
Many people don’t use these terms regularly and oftentimes use them interchangeably when referring to legal cases. That is fine. Many of these laws intersect and overlap. Below are general definitions that will help distinguish them from one another.
- Whistleblower cases are very similar to retaliation cases. They usually involve an employee that reports to the government or high-level management that their employer is committing a violation of the law. Like retaliation laws, whistleblower laws protect employees from being fired and provide remedies if the law is violated.
- Wrongful Termination is different from retaliation, in that wrongful termination covers a wider range of reasons for unlawful termination; reasons involving the violation of “public policy.” An example of wrongful termination is when an employee is fired for serving on a jury or exercising your right to vote. Retaliation laws do not cover these areas.
- Discrimination cases involve protected classes, rather than protected activities. Everyone knows that it is unlawful for an employer to fire someone because of their race. But there are several additional protected classes to CA discrimination law, including religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person. These are not covered by CA’s retaliation laws.
What Can Retaliation Lawyers Help You to Recover?
Retaliation lawsuits are not easy to win. It takes a great retaliation lawyer to successfully represent you in court, to prove that your retaliation claims are legitimate. With a great lawyer, these are some of the damages that you can recover:
- Economic damages – These are the wages that you lost, since you were wrongfully fired as an act of retaliation.
- Emotional distress damages – The pain and suffering that you were put though, caused by the retaliation, is given a monetary value. Often times, people can experience psychological effects that cause sleeplessness, stress, diarrhea, or depression. In order for emotional distress awards to be given, you must be able to prove these in court – this means, your best bet would be to have it documented by a professional (doctor/ therapist)
- Attorney’s Fees – Sometimes, if you win the retaliation lawsuit, you can recover attorney’s fees from the other party.
- Punitive Damages – Punitive damages are awarded as a punishment to the wrongdoer. Punitive damages are not always given, as it will need to be proved that the employer acted with malice, oppression and fraud.
Your retaliation lawsuit is not going to be exactly the same as any other lawsuit. Every case is totally unique. It’s impossible to give an estimate of what you may be awarded for your case. The outcome is heavily influenced by hundreds of factors. Plus all lawsuit settlements are confidential so there is not any information out there regarding averages.
Filing a Claim for a Retaliation Lawsuit
If you have a case you should hire a lawyer sooner rather than later. First of all, there is a statute of limitations that applies to all employment cases. You’re deadline might be coming up (especially if you work for a government entity) so be sure that you speak with a retaliation lawyer to find out how long you have. Second of all, before firing lawsuit, your legal team needs to gather the facts from you. If you wait a long time before contacting a lawyer, it is much more difficult for the lawyer to collect all the facts.
If you were fired by your former employer, talk to one of our retaliation attorney’s today to get a free consultation for your specific situation. The Bohm Law Group will make sure that you are treated with respect and dignity.