Retaliation for Protected Activity FAQ

Protected activity refers to any action taken by an employee that is legally protected from employer retaliation. Under California law, numerous statutes protect employees who engage in specific activities. The Fair Employment and Housing Act (Government Code Section 12940) protects employees who oppose unlawful discrimination or harassment, file complaints with the Department of Fair Employment and Housing, participate in DFEH investigations, or testify in employment discrimination proceedings.

Labor Code Section 98.6 protects employees who file wage claims or complaints about labor law violations with the Labor Commissioner. Labor Code Section 1102.5 protects whistleblowers who report violations of law. Additional protected activities include requesting reasonable accommodations for disabilities or religious beliefs, taking family or medical leave under FMLA or CFRA, requesting pregnancy disability leave, filing workers' compensation claims under Labor Code Section 132a, reporting workplace safety violations, engaging in union activities or collective bargaining under the National Labor Relations Act, and complaining about wage and hour violations including unpaid overtime or meal and rest break violations.

No, California law explicitly prohibits retaliation against employees who complain about discrimination or harassment. Government Code Section 12940(h) makes it unlawful for an employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under FEHA or because the person has filed a complaint, testified, or assisted in any proceeding under FEHA. This protection applies whether you complain about discrimination or harassment affecting yourself or others.

The complaint can be made internally to supervisors, human resources, or management, or externally to the DFEH or EEOC. You are protected even if your complaint turns out to be unfounded, as long as you had a good faith, reasonable belief that discrimination or harassment occurred. The protection extends beyond termination to include any adverse employment action such as demotion, pay reduction, transfer to less desirable duties, denial of promotion, or creating a hostile work environment. Courts have held that the anti-retaliation provision is liberally construed to effectuate its remedial purposes and encourage employees to report unlawful conduct without fear of reprisal.

California Labor Code Section 98.6 provides broad protection against retaliation for employees who make complaints about wage and hour violations. Protected complaints include reporting unpaid minimum wages, unpaid overtime compensation, missed meal breaks or rest periods, unpaid wages upon termination, improper paycheck deductions, misclassification as an independent contractor, misclassification as an exempt employee, failure to reimburse business expenses under Labor Code Section 2802, unpaid sick leave under the Healthy Workplaces, Healthy Families Act, wage statement violations under Labor Code Section 226, and failure to pay proper prevailing wages on public works projects.

The protection applies whether you complain internally to your employer, file a claim with the Labor Commissioner's Office, file a lawsuit in court, or participate in a Labor Commissioner investigation or hearing. You do not need to use any particular format or language - oral complaints are protected just as written complaints are. Additionally, Labor Code Section 1102.5 may provide additional protection if the wage violations also violate statutes or regulations. The retaliation protection extends to employees who assist coworkers with wage claims or who provide testimony in wage and hour proceedings.

Yes, California law protects employees who participate in or support discrimination complaints filed by others. Government Code Section 12940(h) prohibits retaliation not only against those who file complaints but also against those who have testified or assisted in any proceeding under FEHA. This means you are protected if you provide testimony as a witness in a DFEH investigation, give a statement supporting a coworker's harassment complaint, participate in an internal investigation of discrimination, provide documentary evidence for another employee's case, or corroborate another employee's account of discriminatory conduct.

The protection applies even if you have no personal stake in the outcome of the complaint. Courts recognize that discrimination complaints often require witness testimony and that protecting witnesses from retaliation is essential to the effectiveness of anti-discrimination laws. Similarly, Labor Code Section 98.6 protects employees who testify or are about to testify in Labor Commissioner proceedings involving another employee's wage claim. The key is that your participation must relate to protected activity - supporting complaints about unlawful conduct. Employers cannot punish you for telling the truth or supporting legitimate complaints, even if those complaints are ultimately not substantiated.

To prove retaliation under California law, you must establish that you engaged in protected activity, your employer subjected you to an adverse employment action, and there was a causal connection between your protected activity and the adverse action. California courts apply the McDonnell Douglas burden-shifting framework. First, you must establish a prima facie case by showing these three elements. The timing between your protected activity and the adverse action is often the strongest evidence of causation - if you are disciplined or terminated shortly after filing a complaint, this creates an inference of retaliation.

Other evidence of causation includes direct statements by supervisors linking the adverse action to your complaint, inconsistent or changing explanations for the adverse action, departure from established policies or procedures, differential treatment compared to similarly situated employees who did not engage in protected activity, and the employer's knowledge of your protected activity. Once you establish a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the action. Then the burden shifts back to you to prove that the employer's stated reason is pretextual - a false cover for retaliation. Evidence of pretext includes inconsistencies in the employer's explanation, lack of documentation for the stated reason, and evidence that the stated reason did not actually motivate the decision.

The statute of limitations for retaliation claims varies depending on the specific statute under which you are filing. For FEHA retaliation claims under Government Code Section 12940(h), you must file a complaint with the DFEH within three years of the last act of alleged retaliation, and then file a lawsuit within one year of receiving a right-to-sue notice from DFEH. For Labor Code Section 98.6 retaliation claims involving wage and hour complaints, you must file a complaint with the Labor Commissioner within six months of the retaliatory action, or you may file a civil lawsuit within one year.

For Labor Code Section 1102.5 whistleblower retaliation claims, you have three years from the date of the retaliatory action to file a lawsuit under Section 1102.6. For wrongful termination in violation of public policy claims, the statute of limitations is generally two years under Code of Civil Procedure Section 335.1. For Labor Code Section 132a retaliation related to workers' compensation, you must petition the Workers' Compensation Appeals Board within one year. These time limits are strict and missing a deadline can permanently bar your claim. If you believe you have been retaliated against, it is crucial to consult with an employment attorney immediately to ensure all claims are timely filed.

No, multiple California and federal laws prohibit retaliation for taking medical leave or requesting disability accommodations. The California Family Rights Act (Government Code Section 12945.2) and the Family and Medical Leave Act protect employees from retaliation for taking up to 12 weeks of leave for serious health conditions, pregnancy, childbirth, or to care for family members. The Fair Employment and Housing Act (Government Code Section 12940) prohibits retaliation for requesting or using reasonable accommodations for disabilities, pregnancy, religious beliefs, or other protected characteristics. The Pregnancy Disability Leave Law (Government Code Section 12945) protects employees who take pregnancy disability leave.

Labor Code Section 230.1 prohibits discrimination for taking time off to obtain medical treatment for domestic violence. Retaliation can include termination, demotion, or any adverse action taken because you requested or used protected leave. It also includes interference with your leave rights, such as discouraging you from taking leave, requiring you to work during approved leave, or denying leave to which you are entitled. Courts have held that employers cannot count protected leave as an absence when making termination decisions, cannot require employees to find their own replacements for protected leave, and cannot retaliate against employees who are unable to return to work at the exact end of their leave period if they request extensions as reasonable accommodations.

If you experience retaliation, take immediate action to protect your rights. First, document everything by creating a detailed written timeline of events including dates, times, participants, and specific actions or statements, saving all relevant emails, text messages, and documents to a personal device or email account, keeping copies of performance reviews, disciplinary notices, and other employment documents, and documenting witnesses who observed your protected activity or the retaliation. Second, report the retaliation internally if safe to do so by following your employer's complaint procedures, putting your complaint in writing to create a record, and keeping copies of all communications.

Third, file complaints with appropriate agencies such as the DFEH for discrimination or harassment retaliation, the Labor Commissioner for wage and hour retaliation, Cal/OSHA for safety-related retaliation, or the EEOC for federal law violations. Fourth, preserve evidence by not deleting any communications, requesting copies of your personnel file under Labor Code Section 1198.5, and gathering contact information for potential witnesses. Fifth, consult with an employment attorney as soon as possible to evaluate your claims, ensure timely filing of all necessary complaints, and protect your rights. Do not resign unless absolutely necessary, as resignation can complicate your claims, and do not sign any separation agreements or releases without attorney review. Finally, take care of your health by seeking medical or counseling support and documenting the emotional impact of the retaliation.

Yes, California law strongly protects employees who refuse to participate in or perform illegal activities. Labor Code Section 1102.5 explicitly protects employees who refuse 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. This protection applies even if you are directly ordered to perform the illegal activity by a supervisor or manager. Common scenarios include refusing to falsify business records or financial documents, refusing to violate environmental laws or dispose of hazardous waste illegally, refusing to participate in fraudulent billing or insurance fraud, refusing to violate health and safety regulations, refusing to discriminate against customers or employees in violation of civil rights laws, and refusing to engage in unfair business practices or consumer fraud.

Additionally, California's wrongful termination in violation of public policy doctrine protects employees terminated for refusing to violate laws or public policy. You do not need to be certain that the requested activity is illegal - you only need a reasonable belief based on the circumstances. However, the belief must be objectively reasonable, not merely a subjective fear. If you are terminated or otherwise retaliated against for refusing to break the law, you may have claims under Labor Code Section 1102.5, wrongful termination in violation of public policy, and potentially other statutes depending on the specific circumstances.

California law provides substantial remedies for victims of unlawful retaliation. Economic damages include back pay from the date of termination or adverse action through trial, front pay for future lost earnings if reinstatement is not feasible, lost benefits including health insurance, retirement contributions, stock options, and bonuses, and out-of-pocket expenses such as job search costs and medical expenses. Non-economic damages include compensation for emotional distress, humiliation, mental anguish, and damage to reputation and professional standing. Under FEHA retaliation claims, emotional distress damages do not require physical injury.

Punitive damages may be awarded under Civil Code Section 3294 if the employer acted with malice, oppression, or fraud, and can substantially exceed compensatory damages to punish and deter unlawful conduct. Specific statutes provide additional remedies: Labor Code Section 1102.5(f) provides for civil penalties up to $10,000 per violation for whistleblower retaliation; FEHA allows unlimited compensatory and punitive damages; Labor Code Section 98.6 provides for reinstatement and reimbursement of lost wages and benefits. Successful plaintiffs are entitled to reasonable attorney's fees and costs under most retaliation statutes, making these cases financially accessible. If terminated, you are entitled to reinstatement to your former position or a comparable position. Courts may also grant injunctive relief to prevent future retaliation and require policy changes.