Retaliation in the workplace is a serious violation of California law. If your employer has taken adverse actions against you after you engaged in legally protected activity, you may have a valid claim. But proving retaliation can be challenging. In this guide, we walk you through how to document, establish, and enforce your rights.
What Is Workplace Retaliation Under California Law?
Retaliation occurs when an employer penalizes an employee for engaging in a protected activity (i.e., something the law allows), for example, reporting discrimination, complaining about wage violations, requesting disability accommodations, or cooperating in investigations.
In California, several key laws protect against retaliation:
- Labor Code § 1102.5 (whistleblower protections): prohibits retaliation for reporting suspected violations of law, refusing to commit unlawful acts, or participating in enforcement actions.
- FEHA (Fair Employment and Housing Act): prohibits retaliation against employees who complain about or oppose discrimination, harassment, or who assist investigations under FEHA.
- Labor Code § 98.6: protects employees who file or threaten to file unpaid wage claims or complain about other labor law violations, such as unpaid overtime, double time and/or premium pay.
- SB 497 (2023 changes): as of January 1, 2024, creates a rebuttable presumption of retaliation if adverse actions (discipline, demotion and/or termination) occur within 90 days of your protected activity.
Because of SB 497, proving a prima facie case of retaliation is somewhat easier for employees in California, especially when adverse action occurs close in time to the protected act.
Why It’s Not Always Obvious
Retaliation doesn’t always look like a blatant firing. Some more subtle, or “adverse but not extreme”, actions might include:
- Negative performance reviews or write-ups that didn’t reflect your prior record
- Demotion, denied promotion, or change to less favorable duties
- Reduction in hours or pay
- Being excluded from meetings or communication channels
- Harassing or hostile treatment after your protected activity
- Transfers to less desirable roles or locations
- Scheduling you on inconvenient shifts
- Increased scrutiny or micromanagement
- Threats, discipline, or warnings after the fact
- Setting you up to fail with impossible tasks
Any of these, if linked with your protected activity, may constitute retaliation under California law.
Step-by-Step Guide: How to Prove Workplace Retaliation in California
Step 1: Confirm Protected Activity
Identify what you did that you reasonably believe is legally protected, such as reporting discrimination, wage theft, or safety violations, or requesting an accommodation. Keep a record of when, how, and to whom you made the report.
Step 2: Document the Adverse Action
Gather proof of how your employer retaliated, such as termination, demotion, pay cuts, or poor reviews. Save emails, letters, texts and performance records showing the change.
Step 3: Connect the Timing
Note when the retaliation happened. If it occurred soon after your protected activity, that timing can help prove a causal link. Under California SB 497, retaliation within 90 days of protected activity is generally presumed unlawful.
Step 4: Collect Evidence and Witnesses
Save written communication, emails, performance evaluations, pay stubs, and text messages. If coworkers witnessed retaliation or a sudden change in treatment, ask them for written statements.
Step 5: Get the Employer’s Explanation in Writing
If your employer gives a reason for the adverse action, request it in writing or document it yourself. This helps identify whether the stated reason is inconsistent or pretextual.
Step 6: File a Complaint or Claim
Depending on the situation, you may need to file with the California Civil Rights Department (CRD) or Labor Commissioner before pursuing a lawsuit. An employment attorney can guide you through this process.
Step 7: Consult an Employment Attorney
An experienced retaliation lawyer can evaluate your claim, preserve your rights, and build a strong case for compensation and justice.
Common Hurdles & Tips
- Preserve everything: As soon as you sense retaliation, begin maintaining a retaliation diary noting dates, times, who said what, and context.
- Do not delete communications: Emails, texts, Slack channels, and chats could all be vital.
- Avoid retaliatory behavior back: Don’t engage in misconduct that your employer could cite as reason to fire you. This includes exercising caution relating to your social media posts and/or direct messages.
- Watch statute of limitations: Administrative deadlines vary depending on your claim (for FEHA: generally within 3 years for retaliation, but sometimes shorter).
- Beware of class or PAGA claims: Sometimes retaliation claims are folded into broader Labor Code claims (e.g., under the Private Attorneys General Act).
- Use SB 497 to your advantage: The 90-day presumption means your timing is more strategically important than ever.
Why Having an Attorney Helps
- Legal counsel can help you identify which statutory protections apply (e.g. FEHA, Labor Code, whistleblower laws).
- Lawyers know how to preserve privileged communications, craft persuasive narratives, and highlight inconsistencies in employer explanations.
- An attorney can file the appropriate administrative notices correctly, so you don’t lose your rights.
- Firms like Valiant Law can demand compensation, negotiate, or litigate on your behalf.
What You Can Do Right Now
If you believe you’ve been retaliated against at work in California, start documenting everything - every email, meeting, shift change, negative review. Do not wait. The sooner you act, the stronger your position and the better your chance to preserve critical evidence.
We at Valiant Law are ready to help you navigate these complex laws, build your proof, and pursue the justice you deserve. Call us today at 909-254-5771 or contact us online to get started.