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San Diego Retaliation For Taking Leave Lawyer

In California, employees have the right to take both paid and unpaid leave in most situations. However, employers don’t always allow employees to take leave or retaliate against them when they do. Workplace retaliation is defined as an employer taking adverse employment action against an employee who engages in a protected activity. Protected activities including reporting legal violations and submitting formal complaints of workplace harassment. An employer may retaliate in a variety of ways. Termination, demotion, and pay cuts are all examples of retaliation. Actions can also be more subtle, such as negative performance reviews, increased workload, or being excluded from meetings.

Employees should feel empowered to use their rights to take leave without worrying about negative consequences from their employer. At Walker Law, our lawyers will do everything possible to make sure the law protects you from malicious employers. Call our San Diego retaliation for taking leave lawyers today for your free consultation.

California’s Protection Against Retaliation

California employment law protects employees from retaliation by their employers and supervisors in a variety of situations. In California, employers are prohibited from retaliating against employees in response to any of the following:

  • Reporting a legal infraction
  • Complaining about, opposing, or taking part in any workplace harassment or discrimination investigation
  • Making a request for reasonable accommodations based on religious beliefs or a disability.
  • Filing or assisting with a qui tam lawsuit
  • Taking leave under the Family Medical Leave Act (FMLA) or California Family Rights Act leave (CFRA)

What is FMLA and CFRA?

The Federal Family Medical Leave Act (FMLA) and California’s Family Rights Act (CFRA) require employers with at least 50 employees to provide up to 12 weeks of unpaid leave for the birth or adoption of a child; caring for a spouse, registered domestic partner, child, or parent with a serious health condition; or caring for an employee’s own serious health condition.

Under these acts, employers are prohibited from discriminating against or harassing employees who elect to take these basic rights they are entitled to. An employee who’s employer retaliates based on taking family or medical leave has the grounds to potentially recover lost wages, benefits, and even possibly punitive damages to deter future attempts from retaliation.

Proving a Retaliation Claim

Filing a retaliation claim for an FMLA claim must have the following elements to be successful:

  • Employee must have participated in activity protected under the FMLA while on leave.
  • Employee was subjected a to a materially adverse action while on leave
  • Employer acted in response to the employee’s leave.

If the employee can satisfy these elements, the burden of proof shifts to the defendant to offer a legitimate reason for why their actions were not motivated by retaliation. If the employer can successfully demonstrate an alternative reason, the burden then shifts back to the employee to prove the employer’s reasoning was just pre-text, i.e. an excuse to hide their retaliation motives.

Filing A Claim for Retaliation

In San Diego, the process for filing a lawsuit – and the types of damages you can recover – is determined by the circumstances of the retaliation and the statute under which it falls.

  • Labor Code 1102.5 Retaliation Claims: For a claim under California law, a complaint must be filed with the California Labor and Workplace Development Agency and the employer. The employee’s complaint will be determined by the agency as to whether or not it should be investigated. If the agency declines to investigate, the employee can bring an independent private action against the employer.
  • Fair Employment Housing Act: Claims under this law must first be filed with the Department for Fair Employment and Housing (DFEH). After the DFEH issues a notice with the right to sue, the employee can then bring an action against the employer.
  • Qui Tam Retaliation Claims: For violations of the California False Claims Act, employee’s can assert to bring a claim against an employer on behalf of the government.

Contact Walker Law Today For Your Free Consultation

Retaliation claims can be complex and proving actions that are not overt can sometimes be difficult. However, if an employee feels like an action by an employer could be in retaliation, many times this “gut feeling” is based upon a legitimate backing. At Walker Law, we can help you to evaluate your circumstances and figure out the best legal strategy to get you out of your situation while still protecting your family. Call our San Diego retaliation for taking leave lawyers today so we can figure out how to best fight for you!

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