Geonetta & Frucht, LLP
By: Geonetta & Frucht, LLP

The actual definition of employer retaliation is when you, as an employee,  suspect unfair or inappropriate treatment from your manager after you have completed an action that is protected by the Equal Employment Opportunity Commission and may be an act of workplace retaliation.

In many companies, supervisors, human resources, and other employees do receive education on exactly what may be employer retaliation.  This is done so that the incident can be investigated thoroughly and determine if an employee is experiencing workplace retaliation. The situation can then be managed appropriately and prevent any reoccurrence from happening in the future or having to go to possible legal alternatives.

Workplace retaliation occurs when your employer or company takes negative action against you after you have filed a formal complaint about workplace discrimination or harassment. The Equal Employment Opportunity Commission (EEOC) considers the act of filing a valid complaint a “protected activity” of an employee. Because it is considered your right and protected, it is illegal for an employer or other company supervisor to respond to the complaint in a disciplinary or inappropriate manner. 

Some of the more common actions by a company, or supervisor  that the EEOC considers workplace retaliation are: 

  • Barring you, as the employee,  from attending meetings or other events the business hosts.
  • Transferring you to a different department or work location.
  • Withholding you from a raise or promotion that you normally would get.
  • Providing you with a negative performance review, that may be uncalled for.  
  • Making your work environment feel unsafe or uncomfortable for you to work in.
  • Limiting the number of hours that you may work.

The above is only a few of the things you may notice, but employees can be ostracized in many ways, and unfortunately, many companies won’t remedy the situation. If you find yourself in this situation, you should consult with a San Francisco, or Oakland employment lawyer that is versed in employee retaliation. Only then, will you get the professional advice you need to proceed effectively.

What Does the Legal Term “Protected Activities Include and What Can They Consist Of?

There are two types of retaliation.

Retaliation to the opposition – This is when an employer requires you to perform any act that is illegal according to the law.

Retaliation to participation – This can occur when an employer takes  adverse action against you for:

  • Having filed a charge of discrimination with the EEOC or similar state or government agency.
  • Having participated or assisted in an outside agency investigation.
  • Having filed or taken part in any type of discrimination lawsuit.

The EEOC prohibits employers from punishing you in any manner for asserting your rights to be free from employment discrimination. If you, as the employee, assert your rights in any of these areas you are performing a protected activity.

Actual “protected activities” may include (but are not limited to):

  • Ø  Refusing to follow directions that would be discriminatory.
  • Involving yourself in filing or witnessing an EEOC charge, complaint, investigation, or lawsuit.
  • Telling your supervisor about employment discrimination.
  • You refuse sexual advances or intervening to protect another.
  • Discussing wages or compensation with a co-worker or manager, regardless of the involvement of a union or other formal organization.

Some of this seems vague, and a matter of degree, therefore you should consult with an experienced employment legal firm, so the details may be heard, evaluated, and acted upon appropriately to protect your rights.

Due to the Possible Vague Nature of These Complaints, Can I Prove Retaliation?

Generally, to make a sound retaliation case,  you must be able to show that you were subjected to negative or adverse job action because of a complaint you made involving harassment or discrimination.

Your employment retaliation lawyer must prove the following statements true to make your case:

  • You legally engaged in a protected activity.
  • Your employer took direct action against you.
  • There is a definite link between your protected activity and the employer’s action taken against you.

How Do I File a Whistleblower or Retaliation Suit in California?

Historically, employees could be fired at any time for any reason under the at-will employment doctrine. However, in the last 40 years, there have been many exceptions to this rule.

These exceptions can come from two sources:

  1. The courts – Which can modify and rule against them using “common law protections”. 
  2. The legislature, which can enact “statutory protections.” Statutory protections tend to be more specific and address specific areas, such as discrimination, workers’ compensation, etc.

Even today, legislators often lack the foresight to address all the various means of retaliation. By using common law protections, you can find ways to “fill the gaps” where no statute, or firm rule, or even legal president may exist.

In California, the courts can recognize a public policy exception to the at-will employment doctrine. An employer now may not find it so easy to discharge you for a reason that violates fundamental principles of public policy. You can have a cause of action; in other words, you may sue for wrongful discharge when the motivation for the discharge violates general public policy.

Due to the way these laws are approached today, and the changes occurring, the best answer to the question is to first consult with an Oakland or San Francisco employment law group that knows all the most current in’s and out’s of employment retaliation law. Most 1st consultation meetings are of no cost to you and will put you on the proper path to effectively present your case.

What Should My First Steps be If I Feel I’m the Victim of Employment Retaliation?

If you feel you are the victim of employer retaliation, most importantly, get the best professional advice you can. These are complex cases, but employment retaliation lawyers, such as Geonetta & Furcht, LLP, in Oakland and San Francisco will fight hard for your rights. Gather all the details you can and get a consultation on your case. Your career and your family’s future can depend upon what happens next.

Geonetta & Frucht, LLP
By: Geonetta & Frucht, LLP