📋 What is Workplace Retaliation in California?

California law prohibits employers from retaliating against employees who engage in protected activities. Retaliation occurs when an employer takes adverse action against an employee because the employee reported misconduct, filed a complaint, or exercised a legal right. I help both employees who have been retaliated against and employers who need to respond to retaliation allegations.

Types of Retaliation Claims

📢 LC 1102.5 - Whistleblower

Protection for employees who report violations of law, refuse to participate in illegal activity, or provide information to government agencies

💰 LC 98.6 - Wage Complaints

Protection for employees who file wage claims with the Labor Commissioner or complain about Labor Code violations

⚖ FEHA Retaliation

Protection for employees who oppose discrimination/harassment, file DFEH complaints, or participate in discrimination investigations

🛠 Workers' Comp (LC 132a)

Protection for employees who file or intend to file workers' compensation claims

Two-Sided Coverage

✅ For Employees (Senders)

  • Identify which retaliation statute applies to your situation
  • Document the timeline between protected activity and adverse action
  • Calculate available damages including back pay and penalties
  • Draft a demand letter that maximizes settlement leverage
  • Understand administrative filing requirements

📩 For Employers (Recipients)

  • Evaluate the strength of the employee's retaliation claim
  • Identify legitimate, non-retaliatory reasons for actions taken
  • Assess potential liability exposure and settlement value
  • Prepare a strategic response to the demand letter
  • Implement protective measures to avoid future claims

⚠ Timing is Critical

Retaliation claims have varying statutes of limitations. Labor Code 1102.5 whistleblower claims have a 3-year statute of limitations. FEHA retaliation claims require filing with CRD within 3 years. Labor Code 98.6 claims must be filed within 6 months with the Labor Commissioner. Act quickly to preserve your rights.

📝 Elements to Prove

Whether pursuing or defending a retaliation claim, understanding the required elements is essential. I evaluate each element when drafting demand letters or advising on response strategy.

Prima Facie Case Elements

  1. Protected Activity - The employee engaged in legally protected conduct (reporting violations, filing complaints, refusing illegal activity)
  2. Employer Knowledge - The employer knew or believed the employee engaged in protected activity
  3. Adverse Employment Action - The employee suffered a materially adverse action (termination, demotion, pay cut, discipline, hostile treatment)
  4. Causal Connection - A causal link exists between the protected activity and the adverse action

Burden-Shifting Framework

1️⃣ Employee's Prima Facie Burden

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The employee must first establish a prima facie case by showing the four elements above. Temporal proximity (close timing between protected activity and adverse action) is often the key evidence of causation. Courts have found periods as short as days or as long as several months sufficient.

2️⃣ Employer's Legitimate Reason

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Once the employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse action. This is a burden of production, not proof. Common defenses include poor performance, policy violations, restructuring, or misconduct.

3️⃣ Employee's Pretext Showing

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If the employer offers a legitimate reason, the employee must show the stated reason is pretextual (a cover-up for retaliation). Evidence of pretext includes inconsistent explanations, timing, deviation from normal procedures, treatment of similarly-situated employees, and direct evidence of retaliatory motive.

💡 LC 1102.5 Special Standard

For Labor Code 1102.5 whistleblower claims, once the employee makes a prima facie showing, the burden of proof shifts to the employer to prove by clear and convincing evidence that the adverse action would have occurred regardless of the protected activity. This is more favorable to employees than the standard McDonnell Douglas framework.

Adverse Actions

🚫 Termination

Firing, layoff, forced resignation, or constructive discharge

📉 Demotion

Reduction in title, responsibilities, or authority

💰 Compensation Changes

Pay cuts, reduced hours, loss of bonuses, or benefits reduction

📄 Discipline

Warnings, write-ups, negative evaluations, or PIPs

👥 Hostile Treatment

Ostracism, schedule changes, undesirable assignments, or increased scrutiny

🔒 Opportunity Denial

Denial of promotion, training, transfer, or career advancement

💰 Damages and Penalties

California retaliation claims provide substantial remedies. I calculate damages to maximize settlement value for employees and assess liability exposure for employers.

Damage Category Description
Back Pay Lost wages and benefits from adverse action to resolution, minus mitigation earnings
Front Pay Future lost earnings if reinstatement is not practical (can extend for years)
Reinstatement Return to former position with full seniority and benefits
Emotional Distress Compensation for anxiety, depression, humiliation, and mental anguish (FEHA claims)
Punitive Damages Additional damages to punish malicious or reckless conduct (FEHA claims)
Civil Penalties LC 1102.5: Up to $10,000 per violation; LC 98.6: Lost wages plus interest
Attorney Fees Prevailing employees recover reasonable attorney fees under most statutes

📊 Sample Damages Calculation

Example: Whistleblower Retaliation - Senior Employee

Back pay (12 months x $7,500/month) $90,000
Front pay (2 years x $90,000/year) $180,000
Lost benefits (health, 401k) $25,000
Emotional distress damages $75,000
Civil penalties (LC 1102.5) $10,000
Attorney fees (estimated) $100,000
POTENTIAL TOTAL RECOVERY $480,000

Attorney Services

$450
Flat Fee Demand Letter
$240/hr
Hourly Consultation

✅ Evidence Checklist

Gather these documents to strengthen your claim (employees) or evaluate your defense (employers). Click to check off items as you collect them.

📄 Protected Activity Documentation

  • ✓ Written complaints (emails, letters, forms)
  • ✓ HR reports or investigation records
  • ✓ Government agency filings (OSHA, Labor Commissioner, CRD)
  • ✓ Witness statements confirming reports made

📅 Timeline Evidence

  • ✓ Date of protected activity
  • ✓ Date of adverse action
  • ✓ Chronology of events showing connection
  • ✓ Calendar showing proximity of events

📈 Performance Records

  • ✓ Performance reviews before complaint
  • ✓ Performance reviews after complaint
  • ✓ Awards, commendations, or positive feedback
  • ✓ Disciplinary records and write-ups

📩 Communications

  • ✓ Emails with supervisors regarding complaint
  • ✓ Text messages showing hostile treatment
  • ✓ Termination or discipline documentation
  • ✓ Statements showing retaliatory motive

🔒 Request Your Personnel File

Under Labor Code Section 1198.5, you have the right to inspect and copy your personnel file within 30 days of a written request. Your personnel file may contain critical evidence showing changed treatment after your protected activity.

📄 Sample Language

I use these templates when drafting retaliation demand letters. Copy and customize for your situation.

Opening Paragraph - Employee
This letter constitutes formal notice of my client's claim for unlawful retaliation against [EMPLOYER NAME]. On [DATE], my client engaged in protected activity by [DESCRIBE PROTECTED ACTIVITY]. Within [TIMEFRAME] of this protected activity, [EMPLOYER NAME] retaliated against my client by [DESCRIBE ADVERSE ACTION]. This retaliation violates California Labor Code Section 1102.5 and subjects [EMPLOYER NAME] to substantial liability.
LC 1102.5 Whistleblower Claim
My client reported [DESCRIPTION OF REPORTED VIOLATION] to [HR/SUPERVISOR/GOVERNMENT AGENCY] on [DATE]. My client had a reasonable belief that the reported conduct violated [SPECIFIC LAW/REGULATION]. This report constitutes protected whistleblowing activity under Labor Code Section 1102.5. The employer's subsequent adverse action - [DESCRIBE ACTION] - occurred within [TIMEFRAME] of the protected disclosure, establishing a clear causal connection. Under LC 1102.5(b), the burden now shifts to the employer to prove by clear and convincing evidence that the adverse action would have occurred regardless of the protected activity.
LC 98.6 Wage Complaint Claim
My client filed a wage claim with the Labor Commissioner on [DATE] / complained to management about [WAGE/HOUR VIOLATION] on [DATE]. Within [X DAYS] of this protected activity - well within the 90-day presumption period established by Labor Code Section 98.6(b) - my client was [TERMINATED/DEMOTED/DISCIPLINED]. This temporal proximity creates a rebuttable presumption of retaliation. The employer's stated reason of [STATED REASON] is pretextual, as evidenced by [EVIDENCE OF PRETEXT].
FEHA Retaliation Claim
My client opposed unlawful [DISCRIMINATION/HARASSMENT] by [DESCRIBE OPPOSITION ACTIVITY] on [DATE]. This opposition constitutes protected activity under Government Code Section 12940(h). In response, [EMPLOYER NAME] retaliated against my client by [DESCRIBE ADVERSE ACTION]. The timing, combined with [OTHER EVIDENCE OF RETALIATORY MOTIVE], demonstrates that the employer's actions were motivated by my client's protected opposition to unlawful practices. Under FEHA, my client is entitled to compensatory damages, punitive damages, and attorney fees.
Damages Demand
Based on the foregoing, my client demands: (1) back pay in the amount of $[AMOUNT], representing lost wages from [DATE] to present; (2) front pay or reinstatement to [FORMER POSITION]; (3) compensation for emotional distress; (4) civil penalties as provided by Labor Code Section 1102.5(f); and (5) attorney fees and costs. The total exposure, including potential punitive damages, exceeds $[AMOUNT]. To resolve this matter without litigation, my client is willing to accept $[SETTLEMENT AMOUNT] within [30 DAYS] of this letter.

🚀 Next Steps

Whether you're an employee sending a retaliation claim or an employer responding to one, I can help you navigate the process.

For Employees (Senders)

Step 1: Document Everything

Gather all evidence of protected activity, adverse action, and timeline before sending your demand

Step 2: Send Demand Letter

I draft demand letters for $450 flat fee that maximize your settlement leverage

Step 3: File Administrative Complaint

File with Labor Commissioner (LC 98.6), CRD (FEHA), or directly in court (LC 1102.5)

Step 4: Negotiate or Litigate

Pursue settlement or proceed to litigation depending on employer's response

For Employers (Recipients)

Step 1: Preserve Evidence

Issue litigation hold immediately to preserve all relevant documents and communications

Step 2: Investigate Claim

Conduct internal investigation to evaluate claim strength and identify defenses

Step 3: Assess Exposure

Calculate potential damages and evaluate settlement vs. litigation costs

Step 4: Respond Strategically

I help employers craft responses that protect their interests while exploring resolution

Need Legal Help?

I help both employees and employers with California retaliation claims. Schedule a consultation to discuss your situation.

Schedule Consultation Email: owner@terms.law

California Resources

  • CA Civil Rights Department (CRD): calcivilrights.ca.gov - For FEHA retaliation complaints
  • Labor Commissioner: dir.ca.gov/dlse - For LC 98.6 wage complaint retaliation
  • Cal/OSHA: dir.ca.gov/dosh - For safety whistleblower complaints
  • State Bar Lawyer Referral: calbar.ca.gov - Find employment attorneys