📋 Overview
You've received a demand letter claiming retaliation for protected activity. California provides robust protections against employer retaliation for whistleblowing, discrimination complaints, safety concerns, and other protected activities. Understanding the specific type of retaliation alleged is critical to your response.
⚠ Burden-Shifting Standard
Under Labor Code 1102.5 (whistleblower), the burden shifts to the employer to prove the action would have been taken regardless of protected activity.
🕒 Temporal Proximity
Close timing between protected activity and adverse action is powerful circumstantial evidence of retaliation. Document independent reasons thoroughly.
💰 Severe Penalties
Retaliation remedies can include reinstatement, back pay, front pay, emotional distress, punitive damages, and attorney fees.
Types of Protected Activity
- Whistleblowing (LC 1102.5) - Disclosing violations of law to government or supervisor
- Discrimination complaints (FEHA) - Opposing discrimination or participating in investigation
- Safety complaints (LC 6310) - Reporting unsafe working conditions to Cal/OSHA
- Wage complaints (LC 98.6) - Filing Labor Commissioner claim or complaint about wages
- Workers' compensation (LC 132a) - Filing workers' comp claim
- CFRA/FMLA leave - Requesting or taking protected leave
- Jury duty, voting, witness testimony - Exercising civic duties
Case review, professional response letter, up to 2 revisions. Often resolves matters without litigation.
🔍 Evaluate the Claim
Before responding, identify the protected activity alleged, determine if an adverse action occurred, and establish your legitimate business reasons.
Risk Assessment Matrix
| Retaliation Type | Potential Damages | Risk Level |
|---|---|---|
| Whistleblower termination (LC 1102.5) | Lost wages + punitives + reinstatement + fees | HIGH |
| FEHA retaliation | Lost wages + emotional distress + punitives + fees | HIGH |
| Workers' comp retaliation (LC 132a) | Reinstatement + lost wages + $10K penalty + fees | HIGH |
| Wage claim retaliation (LC 98.6) | Lost wages + reinstatement + penalty + fees | HIGH |
| Safety complaint retaliation | Lost wages + reinstatement + civil penalty | MEDIUM |
📄 Protected Activity Evidence
- ✓Date(s) of alleged protected activity
- ✓Who received the complaint/report
- ✓Documentation of complaint
- ✓Decision-maker's knowledge of activity
📝 Business Reason Documentation
- ✓Performance issues predating protected activity
- ✓Policy violations and write-ups
- ✓Independent reason for adverse action
- ✓Comparator treatment
⚠ 2021 Amendment to LC 1102.5
Under SB 331 (2021), the burden has shifted. Once an employee establishes a prima facie case of whistleblower retaliation, the employer must prove by clear and convincing evidence that the adverse action would have occurred regardless of protected activity. This is a higher burden than previous law.
🛡 Your Defenses
Retaliation claims require the employee to show a causal connection between protected activity and adverse action. Your defense focuses on breaking that causal link.
Independent Legitimate Reason
If you can demonstrate the adverse action was based entirely on legitimate, non-retaliatory reasons (performance, misconduct, restructuring), and would have occurred regardless of any protected activity, this defeats the retaliation claim.
No Knowledge of Protected Activity
If the decision-maker was unaware of the employee's protected activity at the time of the adverse action, there can be no retaliatory motive. Document who knew what and when.
No Adverse Employment Action
An adverse action must be material - significant enough that a reasonable employee would find it detrimental. Minor inconveniences or subjective feelings of mistreatment may not qualify.
No Protected Activity
Not all complaints are "protected activity." Internal complaints about general business decisions, personality conflicts, or matters unrelated to law violations may not be protected.
🚨 What Undermines Your Defense
- Adverse action closely following protected activity (days or weeks)
- Inconsistent or shifting explanations for the action
- Decision-maker expressed frustration about the complaint
- Similarly situated employees treated more favorably
- Sudden documentation of "performance issues" after complaint
⚖ Response Options
Based on your evaluation, choose the appropriate response strategy.
📊 Cost-Benefit Analysis: Settlement vs. Litigation
Example: Whistleblower retaliation claim
💡 Burden of Proof Matters
Under current law (LC 1102.5), once the employee makes a prima facie case, you must prove by "clear and convincing evidence" - a higher standard than preponderance - that you would have taken the same action anyway. This makes early settlement more attractive in marginal cases.
📝 Sample Responses
Copy and customize these response templates for your situation.
🚀 Next Steps
What to do after receiving a retaliation claim demand letter.
Step 1: Identify the Activity
Determine exactly what "protected activity" the employee claims triggered retaliation.
Step 2: Map the Timeline
Create a detailed timeline of the protected activity, performance issues, and adverse action.
Step 3: Document Independence
Gather all evidence that your decision was based on legitimate, independent reasons.
Step 4: Assess Burden
Determine if you can meet the "clear and convincing" standard for whistleblower claims.
If They File with CRD (FEHA Retaliation)
- Position Statement - Submit detailed response with supporting documentation
- Mediation - CRD offers free mediation early in the process
- Investigation or Right-to-Sue - CRD may investigate or issue immediate right-to-sue
If They File a Lawsuit
- Answer within 30 days - File your response to avoid default
- Early Case Evaluation - Assess strength of your "same decision" defense
- Consider Early Mediation - Given burden shift, early resolution may be prudent
Get Professional Help
Retaliation claims require careful documentation and strategy. Get a professional response letter drafted on attorney letterhead.
Schedule Consultation - $450