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What is illegal retaliation?

Illegal retaliation occurs when an employer takes some tangible action against an employee for exercising his or her rights under anti-discrimination, whistleblower or certain other laws. Retaliation could be in the form of actions that significantly harm the employee like termination, demotion, salary reduction, discipline or a negative performance review.

Both federal and California law protects employees from retaliation when they participate in legally “protected activities,” such as:

• Complaining about discrimination or sexual harassment
• Exercising their rights under wage and overtime laws
• Participating in investigations
• Protesting unsafe working conditions
• Reporting illegal conduct by the employer or its managers

To qualify as legal retaliation, the employee may have made a claim or complaint either to government authorities, such as the police or any government regulatory agency; or directly to the employer itself, its supervisory or H.R. personnel.

The employee who makes a complaint does not have to be affected by the employer’s illegal action. For instance, a white employee may complain of racism against minorities by the employer. Or a supervisor may complain that his workers are not paid correct overtime.

It is still illegal to retaliate against an employee for making one of the above claims even if the employee turns out to be wrong, so long as he or she acted in good faith.

To establish a case of illegal retaliation, employees must prove:

1. They engaged in a “protected activity” such as one of those listed above
2. They suffered a harmful employment action from the employer
3. The employer took that action because the employee engaged in the protected activity

If the employee can prove the above, then the burden shifts to the employer to prove that it had a true, non-discriminatory reason for the action taken against the employee. The employee then has to prove that the employer’s supposed reason was just an excuse to cover up for the retaliation.

Claims for retaliation against employees related to their complaints of discrimination or harassment have to be filed with the California Department of Fair Employment and Housing within one year, or with the Federal EEOC within 300 days. However laws governing these time limits (“Statues of Limitation”) are complex, and it is wise to consult with an employment attorney immediately if you suspect retaliation.

The lawyers at McCormack and Erlich are highly experienced in cases of retaliation and encourage you to call to discuss your situation today.

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