It Just Got Easier to File a Retaliation Claim Against Employers

Posted on May 21, 2024 in Employment Law

New laws that have taken effect this year protect employees from retaliation after engaging in certain protected activities. A rebuttable presumption was created under the law should an employee experience adverse reactions by an employer within 90 days of the protected activity. Below, we briefly address the significance of this new amendment and how it impacts San Diego employment law and California employees.  

California Employer Retaliation 

Protected acts in the workplace range from reporting fraud, safety code violations, discrimination, and harassment to taking family leave or filing a wage claim. Employees engaging in these legal acts may face harsh backlash, impacting their work environment and potentially spilling over into the personal realm as retaliation escalates and prevents job performance. Retaliation may take the form of the following actions against an employee:

• Demotion
• Salary reduction
• Reduced hours
• Reassignment
• Wrongful termination

Any form of retaliation is against the law. The Equal Pay and Anti-Retaliation Protection Act, recently taking effect, amends two sections of the California Labor Code, creating a rebuttable presumption of retaliation. Section 98.6 addresses the exercise of employee rights, some of which are mentioned above, including recovery claims under the Private Attorneys General Act (PAGA) provided for in the Labor Code. At the same time, Section 1102.5 of the Act addresses whistleblower activity and the right to refuse to participate in conduct violating state or federal laws and regulations. 

The Burden of Proof Before the Act

Before this Act, the burden of proof for establishing a case based on retaliation was placed on an employee and required the following to be demonstrated:

• An employee participated in a protected act
• An employer’s adverse or retaliatory action was directed at and experienced by the employee
• A link existed between engaging in the protected act and the professed adverse action

Once a prima facie, or base on first sight, case was established, an employer was allowed to rebut the presumption by establishing an action as non-retaliatory. Once an employer identified the action as non-retaliatory, the employee was required to provide evidence the action was disguised to appear to be unrelated to the protected act. 

How the Act Addresses Burden of Proof

The new law’s creation of a rebuttable presumption establishes the idea that an adverse reaction within the prescribed 90 days of an employee’s protected action requires an employer to prove their actions were legitimate and non-retaliatory in nature. This law removes the need for an employee to establish a prima case case and shifts the burden of proof to an employer.

The Act may require employers to pay civil penalties for each violation of a protected activity under Section 1102.5 and other remedies available under the California Labor Code. Civil penalties are currently in place for breaches of Section 98.6 protected activity.

Steps To Take if You Suspect Retaliation

Even with the burden of proof shifting in retaliation claims, documenting adverse actions by an employer to employee-protected actions is essential. Filing a complaint with the appropriate governmental agencies may be necessary. When retaliation from an employer occurs, legal assistance is available.

Because employment laws are complex, discussing any actions an employee experiences as retaliatory may provide a clearer understanding of the laws supporting your rights as an employee. Any complaints and concerns as an employee regarding wages and possible Labor Code breaches or whistleblower actions should be addressed appropriately and without the fear of retaliation.