California Retaliation Claim Response Guide for Employers

Evaluate Claims | Assert Defenses | Document Legitimate Reasons | Protect Your Business

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Understanding the Retaliation Claim Against You
You Have Received a Retaliation Demand Letter: An employee or former employee is claiming that you took adverse action against them because they engaged in a protected activity. This is a serious allegation that can result in significant liability, including reinstatement, back pay, front pay, emotional distress damages, punitive damages, and attorney's fees. A strategic, well-documented response is critical.
What is Workplace Retaliation?

Under California and federal law, employers are prohibited from retaliating against employees who engage in legally protected activities. To prove retaliation, the employee must establish three elements:

Element What Employee Must Prove Your Defense Opportunity
1. Protected Activity Employee engaged in a legally protected activity (complaint, whistleblowing, exercising rights) Challenge whether the activity was actually protected or whether you knew about it
2. Adverse Action Employer took a materially adverse action against the employee Challenge whether the action was truly "adverse" or material
3. Causal Connection The protected activity was a substantial motivating reason for the adverse action Demonstrate legitimate, non-retaliatory reasons that existed independently
Protected Activities Under California Law

California provides broad protection for employees who engage in the following activities:

Protected Activity Legal Authority Description
Whistleblower Complaints Labor Code Section 1102.5 Disclosing information to government or law enforcement about reasonably believed violations of law, or refusing to participate in illegal activity
FEHA Complaints Government Code Section 12940(h) Opposing discrimination/harassment, filing DFEH/CRD complaint, participating in investigation, requesting reasonable accommodation
Wage and Hour Complaints Labor Code Section 98.6 Filing wage claims, complaining about unpaid wages, testifying in wage proceedings, or exercising rights under Labor Code
Workers Compensation Claims Labor Code Section 132a Filing or threatening to file a workers compensation claim, testifying in workers comp proceedings
FMLA/CFRA Leave 29 USC 2615; Gov Code 12945.2 Requesting or taking protected family or medical leave
Safety Complaints Labor Code Section 6310 Reporting unsafe working conditions, refusing to work in dangerous conditions, filing OSHA complaints
EEOC Charges Title VII, 42 USC 2000e-3 Filing discrimination charge, participating in EEOC investigation, opposing unlawful practices
Burden of Proof: In California, after the employee establishes a prima facie case (protected activity, adverse action, causal link), the burden shifts to you to articulate a legitimate, non-retaliatory reason. The employee then bears the ultimate burden of proving retaliation. Under Labor Code 1102.5, however, you must prove by clear and convincing evidence that you would have taken the same action regardless of the protected activity.
What Constitutes an "Adverse Action"?

Not every negative workplace action is legally "adverse." Generally, the action must be materially adverse - meaning it would deter a reasonable employee from engaging in protected activity:

  • Clearly Adverse: Termination, demotion, significant pay cut, denial of promotion, suspension, forced transfer to less desirable position
  • Potentially Adverse: Negative performance review, change in schedule, exclusion from meetings, reassignment of duties, reduced hours, hostile treatment
  • Generally Not Adverse: Minor schedule changes, constructive criticism, ordinary supervision, lateral transfer with same pay/benefits, denial of request for preferred shift
Context Matters: The same action may be "adverse" in one context but not another. For example, a schedule change that interferes with an employee's childcare may be adverse, while the same change for another employee may not be. Courts look at the totality of circumstances and the impact on the specific employee.
California-Specific Retaliation Laws
Labor Code Section 1102.5 (Whistleblower Protection): California's whistleblower statute is one of the strongest in the nation. It protects employees who: (1) disclose information to a government or law enforcement agency about what they reasonably believe is a violation of state or federal law; (2) disclose information internally about what they reasonably believe is a violation; (3) provide information to or testify before any public body investigating a violation; or (4) refuse to participate in activity that would violate law. Employers bear the burden of proving by clear and convincing evidence they would have taken the same action absent the protected conduct.
Labor Code Section 98.6 (Wage Complaint Protection): Prohibits retaliation against employees who file wage claims, testify in wage proceedings, or exercise any right under the Labor Code. Rebuttable presumption of retaliation if adverse action occurs within 90 days of protected activity.
Labor Code Section 132a (Workers Compensation Protection): Prohibits any discrimination against employees because they filed or threatened to file a workers compensation claim, testified in workers comp proceedings, or received a workers comp award. Remedies include reinstatement, lost wages, and up to $10,000 increase in compensation.
Government Code Section 12940(h) (FEHA Retaliation): Prohibits retaliation against employees who oppose FEHA-prohibited practices, file DFEH/CRD complaints, testify in proceedings, or request reasonable accommodations. Applies to employers with 5 or more employees.
Evaluating Your Position: Assessing the Retaliation Claim
Honest Assessment Required: Before responding, conduct a thorough, objective evaluation of the situation. Your response strategy depends on the strength of the employee's claim and the strength of your defenses. If the facts support the claim, focusing on settlement or damage control may be more effective than outright denial.
Step 1: Timeline Analysis

The timing between the protected activity and the adverse action is critical. Create a detailed timeline including:

Event Date Documentation Significance
Date of Protected Activity [Fill in] Complaint record, HR file, email Starting point for causal analysis
When Decision-Maker Learned of Activity [Fill in] Witness statements, emails No retaliation possible without knowledge
When Performance Issues First Arose [Fill in] Performance reviews, warnings, PIPs Pre-existing issues defeat causation
When Adverse Action Decision Was Made [Fill in] Management notes, emails, meeting records Key: Was decision before or after protected activity?
Date of Adverse Action [Fill in] Termination letter, demotion notice Temporal proximity to protected activity
Temporal Proximity Warning: If the adverse action occurred shortly after the protected activity (especially within 1-3 months), courts may infer a causal connection. However, timing alone is generally insufficient to prove retaliation. You need strong documentation of legitimate, independent reasons.
Step 2: Document the Decision-Making Process

Determine exactly how and why the adverse action decision was made:

  • Who made the decision? Identify the actual decision-maker(s) and their level of knowledge about the protected activity
  • When was the decision made? If the decision was made before the protected activity occurred, there can be no retaliation
  • What information did the decision-maker have? Document what performance issues, policy violations, or business reasons they considered
  • Was there a consistent process? Did you follow your standard policies and procedures?
  • Are there contemporaneous records? Performance reviews, warnings, emails, and notes created before the protected activity are crucial
Step 3: Evaluate Decision-Maker Knowledge

A fundamental defense is lack of knowledge. Retaliation requires that the decision-maker knew about the protected activity:

Key Questions:
  • Did the person who made the adverse action decision actually know about the protected activity?
  • If so, when did they learn about it - before or after making the decision?
  • Is there documentation showing the decision was made before the decision-maker learned of the protected activity?
  • Was the decision made by someone with no knowledge of the protected activity ("independent decision-maker")?
Step 4: Identify Legitimate, Independent Reasons

Document all legitimate, non-retaliatory reasons for the adverse action. These reasons must be:

  • Truthful: False or pretextual reasons will destroy your credibility and strengthen the employee's case
  • Documented: Contemporaneous records (before the protected activity) are far more credible than after-the-fact explanations
  • Specific: Vague reasons like "poor performance" are weak; specific incidents with dates are strong
  • Consistent: The reasons you give should match how you treated similarly situated employees
  • Independent: The reasons must have existed regardless of the protected activity
Strong Legitimate Reasons Weak or Pretextual Indicators
Documented performance issues predating protected activity Sudden discovery of issues after protected activity
Progressive discipline followed (warnings, PIP) Immediate termination without prior warnings
Consistent treatment of similarly situated employees Harsher treatment than others with same issues
Business reasons with objective evidence (RIF, restructuring) Position immediately filled or "new role" created
Policy violation with clear documentation Policy selectively enforced only against this employee
Decision-maker unaware of protected activity Decision-maker expressed hostility about protected activity
Step 5: Assess Comparative Evidence

How did you treat other employees in similar situations who did NOT engage in protected activity?

  • Were other employees with similar performance issues or policy violations treated the same way?
  • If other employees were treated more leniently, can you explain the difference based on non-retaliatory factors?
  • Is there a pattern of adverse actions against employees who engage in protected activities?
Red Flags for Your Defense:
  • The employee had positive reviews until they complained, then suddenly received negative reviews
  • The decision-maker made comments linking the adverse action to the protected activity
  • The adverse action was disproportionate to the stated reason
  • You deviated from normal policies or procedures in handling this employee
  • The timing is very close (e.g., termination within days or weeks of complaint)
  • Other employees with similar conduct were treated more favorably
Step 6: Gather and Preserve Documentation
  • Personnel File: Performance reviews, warnings, commendations, job descriptions
  • Email Correspondence: All communications with and about the employee, especially regarding the adverse action
  • Decision Documentation: Meeting notes, management discussions, HR records
  • Policy Documents: Employee handbook, relevant policies that were allegedly violated
  • Witness Information: Identify managers and coworkers who can corroborate your legitimate reasons
  • Comparative Records: How other employees were treated in similar situations
Document Preservation: Implement a litigation hold immediately. Do not delete or modify any documents, emails, or electronic records related to this employee or the decision. Destruction of evidence can result in adverse inferences and sanctions.
Response Strategies: How to Respond to a Retaliation Demand
Strategic Response is Critical: Your response to a retaliation demand letter will likely be used as evidence if litigation follows. Be factual, professional, and strategic. Avoid emotional language, personal attacks, or statements that could be used against you.
Strategy 1: Break the Causal Chain

The most powerful defense is demonstrating that the adverse action was not connected to the protected activity:

Ways to Break the Causal Chain:
  • Pre-Existing Issues: Show documented performance or conduct problems that predated the protected activity
  • Independent Decision: Prove the decision was made before the protected activity occurred
  • No Knowledge: Establish that the decision-maker did not know about the protected activity
  • Consistent Treatment: Demonstrate other employees were treated the same way for the same reasons
  • Business Necessity: Show objective business reasons (RIF, restructuring, position elimination) that required the action
Strategy 2: Document Independent Legitimate Reasons

Articulate specific, well-documented reasons for the adverse action that exist independently of any protected activity:

Reason Category Examples Documentation Needed
Performance Deficiency Missed deadlines, quality issues, failure to meet goals Performance reviews, metrics, client complaints, PIPs
Policy Violation Attendance issues, insubordination, safety violations Written warnings, incident reports, witness statements
Misconduct Dishonesty, harassment, theft, confidentiality breach Investigation records, witness interviews, evidence
Business Reasons Reorganization, position elimination, budget cuts Business plans, financial records, RIF criteria
Lack of Qualifications Failed to obtain required certification, skills gap Job requirements, training records, certifications
Strategy 3: Challenge the Adverse Action Characterization

Not every negative action is legally "adverse." Challenge whether the alleged action truly rises to the level of materially adverse:

  • De Minimis Actions: Minor criticisms, small changes in duties, ordinary supervision
  • Legitimate Business Decisions: Reassignment to address business needs, even if employee dislikes it
  • No Material Impact: Actions that did not affect pay, benefits, job title, or working conditions
  • Employee's Own Conduct: Consequences that resulted from the employee's own performance or behavior
Strategy 4: Same-Decision Defense

Under California Labor Code 1102.5, you must prove by clear and convincing evidence that you would have made the same decision regardless of the protected activity. For other claims, this is known as the "mixed-motive" defense:

Same-Decision Defense: Even if the protected activity was a factor, demonstrate that:
  • The legitimate reasons were sufficient standing alone to justify the action
  • The decision would have been made regardless of the protected activity
  • The legitimate reasons are not pretextual
This defense can limit or eliminate liability even if some retaliatory motive existed.
Strategy 5: Settlement Considerations

Settlement may be appropriate when:

  • The timing or facts create significant litigation risk
  • Key decision-makers made problematic statements
  • Documentation is weak or inconsistent
  • The cost of litigation exceeds potential settlement
  • A confidential resolution protects company reputation
  • The employee is willing to accept reasonable terms
Settlement Benefits: Settlement offers confidentiality, certainty of outcome, cost control, and closure. A well-drafted settlement agreement includes a full release of all claims, confidentiality provisions, and non-disparagement terms. Weigh these benefits against the merits of your defense.
Response Timing
  • Respond promptly: Acknowledge receipt and provide a substantive response by the deadline
  • Request extension if needed: If you need time to investigate or consult counsel, ask for additional time
  • Do not ignore: Ignoring the demand will likely lead to immediate litigation or regulatory complaint
  • Consult counsel early: Given the complexity of retaliation claims, early legal advice is valuable
Warning: Your response is evidence. Every statement can be used in litigation. Be accurate, be professional, and be strategic. Do not admit liability, make apologies, or offer unauthorized settlements without considering the implications.
Sample Response Letters
Customize These Templates: These sample letters provide a starting point. Modify them to fit your specific situation, insert accurate facts, and ensure all statements are truthful. Have an attorney review your response before sending, especially for significant claims or when litigation is likely.
Sample 1: Denial with Independent Business Justification
[COMPANY NAME] [Company Address] [City, State ZIP] [Phone Number] [Date] VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED [and via email to: employee_attorney@email.com] [Employee Name or Attorney Name] [Address] [City, State ZIP] RE: RESPONSE TO DEMAND LETTER DATED [DATE] [Employee Name] - Denial of Retaliation Claim Dear [Recipient Name]: We are in receipt of your letter dated [Date] on behalf of [Employee Name], alleging that [Company Name] retaliated against [him/her] for [describe alleged protected activity]. We have carefully reviewed your allegations and the underlying facts, and must respectfully but firmly deny any retaliation. DENIAL OF RETALIATION [Company Name] categorically denies that any adverse employment action was taken against [Employee Name] because of [his/her] [describe protected activity]. The employment decision at issue was based entirely on legitimate, non-retaliatory business reasons that existed independently of any protected activity. LEGITIMATE BUSINESS REASONS The decision to [terminate/demote/discipline] [Employee Name] was based on the following documented performance and conduct issues: 1. DOCUMENTED PERFORMANCE DEFICIENCIES: [Employee Name]'s performance had been deficient for [time period]. Specifically: - [Describe specific performance issue with date] - [Describe specific performance issue with date] - [Describe specific performance issue with date] These issues were documented in performance reviews dated [dates] and verbal/written warnings issued on [dates], all of which preceded [his/her] [protected activity] by [time period]. 2. PROGRESSIVE DISCIPLINE FOLLOWED: [Employee Name] was counseled about [his/her] performance issues on [date], received a verbal warning on [date], a written warning on [date], and was placed on a Performance Improvement Plan on [date]. Despite these interventions, [his/her] performance did not improve to acceptable levels. This progressive discipline process was consistent with our standard policies and how we have treated other employees. 3. POLICY VIOLATIONS: [If applicable] [Employee Name] violated company policy by [describe violation]. This violation occurred on [date] and was documented in [describe documentation]. 4. [ALTERNATIVE: BUSINESS RESTRUCTURING]: The decision to eliminate [Employee Name]'s position was part of a broader business restructuring affecting [number] positions. The selection criteria for the reduction in force were based on [describe objective criteria], applied consistently, and had no connection to any protected activity. TIMELINE DEMONSTRATES NO CAUSAL CONNECTION Your letter implies that the timing of [Employee Name]'s [protected activity] and [his/her] [termination/adverse action] establishes retaliation. This suggestion is incorrect: - [Employee Name]'s performance issues were first documented on [date], which was [X months/years] BEFORE [his/her] [protected activity] on [date]. - The decision to [terminate/take action] was made on [date] based on [his/her] failure to improve despite the corrective action plan. - [If applicable: The decision-maker, [Name], was not aware of [Employee Name]'s [protected activity] when the decision was made.] NO PROTECTED ACTIVITY [IF APPLICABLE] We further note that [describe why the alleged activity may not be protected - e.g., "the complaint was not made to a government agency," "the alleged 'violation' does not constitute a violation of law," "the complaint was investigated and found to be unsubstantiated"]. CONCLUSION [Company Name] does not tolerate retaliation and takes all complaints seriously. However, we also have the right and responsibility to hold employees accountable for their performance and conduct. The action taken against [Employee Name] was lawful, justified, and would have occurred regardless of any protected activity. We are prepared to defend this matter vigorously if litigation is pursued. We also reserve all rights to seek recovery of attorney's fees and costs if we are forced to defend against a baseless claim. If you wish to discuss this matter further, please contact [HR Representative/General Counsel] at [contact information]. Sincerely, [Signature] [Name] [Title] [Company Name] cc: [Company's outside counsel, if applicable] Enclosures: - Performance reviews (dates) - Written warnings (dates) - Performance Improvement Plan (date) - [Other relevant documentation]
Sample 2: Response to Whistleblower Retaliation Claim (Labor Code 1102.5)
[COMPANY NAME] [Company Address] [City, State ZIP] [Phone Number] [Date] VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED [and via email to: employee_attorney@email.com] [Employee Name or Attorney Name] [Address] [City, State ZIP] RE: RESPONSE TO DEMAND LETTER - LABOR CODE 1102.5 CLAIM [Employee Name] - Denial of Whistleblower Retaliation Dear [Recipient Name]: We are in receipt of your letter dated [Date] alleging that [Company Name] violated California Labor Code Section 1102.5 by retaliating against [Employee Name] for [describe alleged whistleblower activity]. We have thoroughly investigated these allegations and deny any violation of law. COMPANY'S COMMITMENT TO COMPLIANCE [Company Name] maintains a strong commitment to legal compliance and encourages employees to report concerns about potential violations. We have an open-door policy and a confidential hotline for reporting concerns. Retaliation for good-faith reports is prohibited and not tolerated. RESPONSE TO WHISTLEBLOWER RETALIATION ALLEGATIONS 1. THE ALLEGED DISCLOSURE Your letter alleges that [Employee Name] disclosed information about [describe alleged violation]. We note the following: [Option A - Dispute Protected Activity]: We question whether this activity constitutes protected whistleblowing under Labor Code 1102.5. The statute protects disclosures of information the employee has "reasonable cause to believe" discloses a violation of law. [Employee Name]'s complaint concerned [describe] which does not constitute a violation of any state or federal statute, rule, or regulation. Rather, it was [describe - internal business disagreement, policy interpretation, personal grievance]. [Option B - No Knowledge]: The decision-makers responsible for [Employee Name]'s [termination/adverse action] were not aware of [his/her] alleged disclosures at the time the decision was made. [Decision-maker name] made the decision based on [legitimate reason] on [date], without knowledge that [Employee Name] had made any complaints. [Option C - Investigated in Good Faith]: [Company Name] took [Employee Name]'s concerns seriously. Upon receiving [his/her] complaint on [date], we [describe investigation steps]. The investigation determined that [describe outcome - no violation occurred, isolated incident was addressed, allegation was unsubstantiated]. 2. LEGITIMATE, NON-RETALIATORY REASONS [Employee Name]'s [termination/demotion/discipline] was based on legitimate business reasons documented prior to and independent of any protected activity: Performance Issues (Predating Any Protected Activity): - On [date], [Employee Name] received a performance review documenting [specific issues] - On [date], [he/she] received a verbal warning for [specific conduct] - On [date], [he/she] was placed on a Performance Improvement Plan for [specific deficiencies] - On [date], [he/she] failed to meet the PIP objectives, specifically [describe failures] These documented issues began on [date], which was [X months] before [his/her] alleged protected activity on [date]. 3. SAME-DECISION EVIDENCE Under Labor Code 1102.5(c), we affirm that [Company Name] would have taken the same action against [Employee Name] regardless of any protected disclosure, based on the legitimate performance and conduct issues described above. The decision to [terminate/discipline] [him/her] was made by [decision-maker] based solely on [his/her] failure to meet performance standards, as documented in [his/her] personnel file. 4. CONSISTENT TREATMENT [Employee Name] was treated consistently with how [Company Name] has treated other employees with similar performance or conduct issues. [Provide examples if available, e.g., "In the past two years, [X] other employees have been terminated for failing to meet PIP objectives."] CONCLUSION [Company Name] did not retaliate against [Employee Name] for any whistleblower activity. We are confident we can demonstrate by clear and convincing evidence that the same decision would have been made absent any protected activity. We are prepared to defend against this claim and reserve all rights and remedies. If you wish to discuss resolution, please contact [name] at [contact information]. Sincerely, [Signature] [Name] [Title] [Company Name] Enclosures: - Documentation of performance issues - Performance Improvement Plan and outcomes - [Other relevant documentation]
Sample 3: Response to Workers Compensation Retaliation Claim (Labor Code 132a)
[COMPANY NAME] [Company Address] [City, State ZIP] [Phone Number] [Date] VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED [and via email to: employee_attorney@email.com] [Employee Name or Attorney Name] [Address] [City, State ZIP] RE: RESPONSE TO DEMAND LETTER - LABOR CODE 132a CLAIM [Employee Name] - Denial of Workers Compensation Retaliation Dear [Recipient Name]: We are in receipt of your letter dated [Date] alleging that [Company Name] violated California Labor Code Section 132a by discriminating against [Employee Name] in connection with [his/her] workers compensation claim. We deny these allegations. COMMITMENT TO INJURED WORKERS [Company Name] is committed to supporting employees who suffer workplace injuries. We maintain a comprehensive workers compensation insurance program and have clear policies for accommodating injured workers during their recovery. We do not discriminate against employees for filing workers compensation claims. RESPONSE TO LABOR CODE 132a ALLEGATIONS 1. PROPER HANDLING OF WORKERS COMPENSATION CLAIM [Employee Name] reported a workplace injury on [date]. [Company Name] responded appropriately: - Injury report was completed on [date] - Workers compensation claim was filed with our carrier on [date] - [Employee Name] received appropriate medical treatment - We provided [modified duty/accommodations] from [date] to [date] - We maintained regular communication regarding [his/her] recovery status We have never discouraged, denied, or interfered with [Employee Name]'s workers compensation claim or benefits. 2. THE EMPLOYMENT ACTION WAS UNRELATED TO THE WORKERS COMP CLAIM The decision to [terminate/take action against] [Employee Name] was based on legitimate, non-discriminatory reasons unrelated to [his/her] workers compensation claim: [Option A - Conduct/Performance]: [Employee Name] was [terminated/disciplined] due to [describe legitimate reason - performance issues, policy violation, misconduct]. Specifically: - [Describe specific issue with date] - [Describe documentation] This conduct/performance issue [predated the injury / occurred during employment and would have resulted in the same action for any employee]. [Option B - Business Necessity]: [Employee Name]'s position was eliminated as part of [describe business reason - restructuring, layoff, position elimination]. This decision was made based on [objective criteria] and affected [number] employees. The decision was unrelated to [his/her] workers compensation claim or work status. [Option C - Inability to Return]: [Employee Name] was unable to return to work within [applicable time period, if any] following [his/her] injury. [His/her] treating physician indicated on [date] that [he/she] could not perform the essential functions of [his/her] position, even with reasonable accommodation. Despite our efforts to identify suitable modified or alternative work, we were unable to accommodate [his/her] restrictions because [explain]. [Option D - Job Abandonment]: Following [his/her] release to return to work on [date], [Employee Name] failed to report to work or contact [Company Name] despite [describe attempts to reach employee]. After [number] days of no-call/no-show, [he/she] was considered to have abandoned [his/her] position pursuant to company policy. 3. NO DISCRIMINATORY ANIMUS There is no evidence of any discriminatory motive related to [Employee Name]'s workers compensation claim: - The decision-maker, [name], has no history of adverse treatment of injured workers - [Company Name] has continued to employ [X] employees who have filed workers compensation claims - [Employee Name]'s workers compensation claim was processed normally and [he/she] received all benefits to which [he/she] was entitled 4. COMPARATIVE TREATMENT [Employee Name] was treated consistently with how [Company Name] treats other employees, regardless of workers compensation claim status. [Provide examples of consistent treatment if available.] CONCLUSION [Company Name] categorically denies violating Labor Code Section 132a. The employment action taken was based on legitimate, non-discriminatory reasons and would have occurred regardless of [Employee Name]'s workers compensation claim. We are prepared to defend this matter before the Workers Compensation Appeals Board and in any other forum. We reserve all rights and remedies, including the right to seek sanctions for frivolous claims if warranted. If you wish to discuss this matter, please contact [name] at [contact information]. Sincerely, [Signature] [Name] [Title] [Company Name] Enclosures: - Workers compensation claim documentation - Return-to-work correspondence - Documentation of legitimate business reasons - [Other relevant documentation]
Legal Defenses to Retaliation Claims
Multiple Defenses Available: California law provides several defenses to retaliation claims. You may assert multiple defenses simultaneously. The strength of your defense depends on your documentation, consistency, and credibility.
1. No Knowledge of Protected Activity

You cannot retaliate against conduct you did not know about. This is a complete defense:

Defense Requirements:
  • The decision-maker must not have known about the protected activity at the time they made the decision
  • Document who made the decision and what information they had
  • Show that information about the protected activity was not communicated to the decision-maker
  • Beware of "cat's paw" theory - liability may exist if someone with knowledge influenced the decision-maker

Evidence to Gather:

  • Declaration from decision-maker stating they were unaware of protected activity
  • Records showing who was notified of the complaint and when
  • Evidence that the decision was made before the protected activity was reported
  • Email/communication records showing the decision-maker was not copied on complaint-related correspondence
2. No Causal Connection

Even if the employee engaged in protected activity and suffered adverse action, there must be a causal link between the two:

Ways to Defeat Causation:
  • Pre-Existing Issues: Performance or conduct problems documented before the protected activity
  • Prior Decision: Decision to take adverse action was made before the protected activity
  • Consistent Treatment: Same action was taken against employees who did not engage in protected activity
  • Business Reasons: Objective business necessity required the action (RIF, restructuring)
  • Intervening Events: New misconduct or performance failure after the protected activity
Temporal Proximity: Close timing between the protected activity and adverse action creates an inference of causation. However, California courts have held that temporal proximity alone, without more, is insufficient to establish retaliation. You need strong evidence of legitimate reasons to overcome the timing inference.
3. Legitimate, Non-Retaliatory Reason

Articulate a genuine, documented reason for the adverse action that has nothing to do with the protected activity:

Strong Legitimate Reasons Documentation Required
Performance deficiencies with specific examples Performance reviews, metrics, client feedback, PIPs
Violation of clearly communicated policies Policy documents, signed acknowledgments, incident reports
Misconduct with investigation findings Investigation report, witness statements, evidence
Reduction in force with objective criteria Business justification, selection criteria, affected positions
Attendance/punctuality issues Attendance records, warnings, policy violations
Insubordination or refusal to follow instructions Written directives, contemporaneous documentation
4. Timing Alone is Insufficient

While timing creates an inference, it is not enough by itself to prove retaliation:

California Law: In Loggins v. Kaiser Permanente Int'l (2007) 151 Cal.App.4th 1102, the Court of Appeal held that while temporal proximity may establish a prima facie case, it is insufficient standing alone to withstand summary judgment when the employer produces evidence of a legitimate, non-retaliatory reason. The employee must produce additional evidence of pretext.

Counterarguments to Timing:

  • Legitimate reasons existed before the protected activity
  • The employee's poor performance continued after the protected activity
  • The decision followed normal disciplinary progression, not sudden action
  • Other employees were treated the same way without engaging in protected activity
5. Same-Decision Defense

Under Labor Code 1102.5 and other statutes, you can limit or avoid liability by proving you would have made the same decision regardless of the protected activity:

Labor Code 1102.5(c): The employer bears the burden of proving by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected conduct. This is a higher standard than preponderance of the evidence.

Elements to Establish:

  • The legitimate reason was sufficient on its own to justify the action
  • The action was consistent with your policies and past practices
  • Other employees were treated the same way for the same reasons
  • The protected activity did not influence the decision
6. Protected Activity Was Not Protected

Not all complaints or activities are legally protected. Challenge whether the alleged activity qualifies:

Statute Protection Limits
Labor Code 1102.5 Disclosure must involve reasonably believed violation of law; internal complaints about policies alone may not qualify
FEHA (Gov. Code 12940) Must oppose practices prohibited by FEHA or participate in FEHA proceedings
Labor Code 98.6 Must involve exercise of rights under Labor Code
Title VII Must have reasonable, good-faith belief that opposed practice was unlawful
7. Employee's Misconduct After Protected Activity

Engaging in protected activity does not immunize an employee from discipline for subsequent misconduct:

Key Principle: If the employee engaged in misconduct or poor performance after the protected activity, you can take appropriate action based on that conduct. Document the new issues carefully and ensure they are treated consistently with how you would treat any employee who engaged in similar conduct.
8. After-Acquired Evidence

If you discover misconduct or resume fraud after the adverse action, it may limit remedies:

  • After-acquired evidence of wrongdoing may bar or limit front pay and reinstatement
  • The employee may still recover back pay up to the date the misconduct was discovered
  • This defense does not eliminate liability but may reduce damages significantly
Attorney Services
Received a Retaliation Demand Letter?

Retaliation claims carry significant risk for employers, including potential liability for back pay, front pay, emotional distress damages, punitive damages, and attorney's fees. I help employers evaluate claims, document defenses, respond strategically, and minimize exposure. Do not respond without understanding your rights and options.

How I Can Help Employers
  • Claim Evaluation: I analyze the demand letter, your documentation, and the relevant facts to assess the strength of the claim and identify weaknesses in the employee's case
  • Defense Strategy: I identify all applicable defenses under Labor Code 1102.5, 98.6, 132a, FEHA, and federal anti-retaliation laws, and develop a strategic response plan
  • Documentation Review: I review your personnel records, policies, and communications to strengthen your legitimate business justification
  • Response Drafting: I prepare professional, legally sound response letters that protect your interests and preserve your defenses
  • Internal Investigation: If needed, I conduct or advise on investigations to establish the facts and document your legitimate reasons
  • Settlement Negotiation: When appropriate, I negotiate favorable settlements that minimize exposure and include appropriate releases and confidentiality terms
  • Litigation Defense: If litigation is unavoidable, I defend retaliation claims in court, at the WCAB, before the Labor Commissioner, or before the Civil Rights Department
When Employers Should Consult an Attorney
Consider consulting an attorney immediately if:
  • You received a demand letter from an attorney or a regulatory agency
  • The employee filed a complaint with the Labor Commissioner, CRD/DFEH, EEOC, or OSHA
  • The timing between the protected activity and adverse action is very close
  • Decision-makers made statements that could be interpreted as retaliatory
  • Your documentation of legitimate reasons is weak or inconsistent
  • The employee was a high performer before the protected activity
  • You deviated from normal policies or procedures in handling this employee
  • Multiple employees have raised similar claims
  • The potential damages are significant (long-term employee, high earner)
What to Bring to Your Consultation
  • The demand letter you received
  • Complete personnel file for the employee (performance reviews, warnings, PIP)
  • Any complaint or protected activity documentation
  • Email and other communications with and about the employee
  • Documentation of the decision-making process for the adverse action
  • Relevant company policies (handbook, discipline policy, complaint procedures)
  • Timeline of relevant events
  • Information about how other employees were treated in similar situations
  • Any investigation reports related to the employee or their complaints
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Frequently Asked Questions
First, do not panic and do not respond immediately without preparation. Carefully read the letter to understand exactly what is being alleged and any deadlines. Immediately implement a document preservation hold to prevent destruction of relevant evidence. Gather the employee's complete personnel file, including all performance reviews, warnings, and communications. Create a timeline of events including the alleged protected activity, when you learned about it, and when the adverse action occurred. Identify who made the decision and what information they had. Consider consulting an employment attorney before responding, especially if the claim involves significant potential liability.
No, close timing between protected activity and adverse action is not automatically retaliation, but it does create an inference of causation that you must overcome. To defend against this inference, you need strong documentation of legitimate, non-retaliatory reasons for the termination that existed independently of the complaint. Evidence that performance issues predated the complaint, that you followed progressive discipline, that the decision-maker was unaware of the complaint, or that other employees were treated the same way is crucial. Timing alone is generally insufficient to prove retaliation under California law, but weak documentation combined with close timing is very risky.
Labor Code 1102.5 (whistleblower protection) is unique in that it places a higher burden on employers. Under 1102.5(c), employers must prove by clear and convincing evidence (not just preponderance) that they would have taken the same action regardless of the protected activity. Other statutes like FEHA (Government Code 12940) use the standard burden-shifting framework where the employee has the ultimate burden of proving retaliation. Labor Code 98.6 (wage complaints) creates a rebuttable presumption of retaliation if adverse action occurs within 90 days. Labor Code 132a (workers comp) is adjudicated before the WCAB and has specific remedies. The statute that applies depends on the type of protected activity alleged.
Yes, engaging in protected activity does not immunize an employee from discipline or termination for legitimate performance or conduct issues. However, you must be able to prove that the performance issues are genuine, documented, and that you would have taken the same action regardless of the protected activity. Best practices include: ensuring performance issues are documented before the complaint if possible; following your standard progressive discipline procedures; treating the employee consistently with how you treat others with similar issues; having the decision made by someone without knowledge of the complaint if possible; and documenting the decision-making process thoroughly.
The "cat's paw" theory (from the fable where a monkey uses a cat to retrieve chestnuts from a fire) holds that an employer can be liable for retaliation even if the decision-maker was unaware of the protected activity, if someone with retaliatory motive influenced the decision. For example, if a supervisor who knew about the complaint provided negative information to HR, and HR relied on that information to terminate the employee, the company could be liable. To defend against this, ensure that decision-makers conduct independent investigations, verify information from supervisors who may have bias, and do not simply rubber-stamp recommendations from those with potential retaliatory motives.
Employees can recover substantial damages in retaliation cases, including: back pay (wages lost from termination to trial); front pay (future wages if reinstatement is not feasible); emotional distress damages (which can be significant); punitive damages (if employer acted with malice or reckless disregard); and attorney's fees and costs (often substantial). Under Labor Code 1102.5, additional civil penalties may apply. Under Labor Code 132a, the employee can receive up to a $10,000 penalty increase in their workers comp award plus reinstatement. FEHA claims before the Civil Rights Department can result in administrative penalties. The potential exposure makes early assessment and strategic response critical.
This depends on several factors: the strength of your documentation and defenses; the timing between the protected activity and adverse action; whether decision-makers made problematic statements; the employee's performance history before the protected activity; the potential damages if you lose; litigation costs and time; confidentiality concerns; and impact on other employees who may be watching. Settlement often makes sense when documentation is weak, timing is bad, or litigation costs exceed settlement value. Fighting makes sense when you have strong defenses, clear documentation, and consistent treatment. Most cases settle, and a well-negotiated settlement with confidentiality and release provisions can be a good business decision.

Related Resources

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Protect Your Business from Retaliation Claims

Whether you need to respond to a demand letter, defend against a regulatory complaint, or develop proactive policies to prevent retaliation claims, I provide experienced guidance to help employers navigate California's complex employment laws.

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Defending Against Retaliation Claims in California

When you receive a retaliation demand letter, you face significant potential liability. California provides strong protections for employees who engage in protected activities such as whistleblowing, filing discrimination complaints, exercising wage and hour rights, and filing workers compensation claims. Employers must respond strategically to protect their interests.

Key California Retaliation Statutes

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