Defending Employers Against Workplace Retaliation Claims in California

Workplace retaliation claims pose a particular risk in California because of the state's strong worker protections and favorable laws for employees. Brereton, Mohamed, & Korte LLP takes pride in being able to represent employers in retaliation claims, not just by conveying our extensive legal experience, but through our strategic, proactive approach to lawyering. As a retaliation attorney, our mission is to help employers avoid expensive litigation and reputational harm.

Our Purpose: Employer Advocacy

California employment laws are the most employee-inclined in the nation; while these laws protect workers, they impose additional responsibility and risk on employers. This is why Brereton, Mohamed, & Korte LLP made a conscious decision to develop our employment law practice to offer employers a well informed, strong voice in their disputes with employees when employers are privy to, or suspect employee misconduct. Defending employers against retaliation claims is not purely legal; it involves the management of human dynamics, anticipating regulatory dangers, and a constant focus on the long-term interests of the employer.

What is Workplace Retaliation in California?

What is Retaliation?

California's Fair Employment and Housing Act (FEHA) and Labor Code declare that retaliation occurs when an employer imposes an adverse employment action against an employee for participating in a legally protected activity. Legally protected activities include:

• Complaining of discrimination or harassment

•  Participating in investigations, complaints or hearings

• Reporting a safety issue or illegal activity ("whistleblowing")

• Requesting a reasonable accommodation

• Taking a legally-protected leave (i.e. FMLA, CFRA)

• Refusing to follow an order believed to be discriminatory or illegal.

Adverse employment actions range from termination, demotion, suspension, to negative performance evaluations, pay cuts, hours reductions, or being reassigned to less desirable jobs.

California vs. Federal Law

Aspect	California (FEHA)	Federal (Title VII)
Employer Size	5+ employees	15+ employees
Protected Categories	Broader (includes sexual orientation, gender identity, medical condition, etc.)	Narrower (race, color, sex, national origin)
Definition of Retaliation	Broader, more employee-friendly	Narrower
Damage Limits	No cap on compensatory damages	Capped

California’s broader protections mean more employers are at risk, and the stakes are higher.

Common Retaliation Scenarios

Retaliation claims don’t require the original complaint to be valid only that the employee had a reasonable belief it was. Common situations include:

• Harassment complaint followed by negative reviews or termination

• Wage complaint leading to reduced hours or undesirable assignments

• Medical leave followed by “restructuring” that eliminates the employee’s position

Even well-intentioned employers can stumble into retaliation claims by acting too quickly after a complaint or failing to document legitimate business reasons for employment decisions.

Typical Situations for Retaliation Claims

Retaliation cases do not require the original complaint be valid, only that the employee had a good-faith belief it was valid. Some basic situations include:

• A complaint about harassment, with a downgrade in performance appraisals or a firing after filing the complaint

•  A complaint about wages, with reduced hours or undesirable assignment after filing the complaint

• A medical leave of absence, which is followed by "restructuring" that leads to the employment termination of the employee

Best-intended employers can fall into retaliation claims, sometimes simply by taking an action too quickly following a complaint or by not being able to document a real business reason for the employment action

Brereton, Mohamed, & Korte’s Proactive Approach

• Pre-lawsuit advice: Guiding employers before acting, confirming facts, and making sure the employer doesn't err legally. 

• Legal representation: Providing a vigorous defense if the employer is sued, minimizing liability and protecting the employer's interests. 

• Policy implementation: Developing or drafting new anti-retaliation policies specific to each employer's needs to comply with ongoing updates to California anti-retaliation laws. 

• Training: Providing trainers who provide training on a regular basis to managers and employees, in order to recognize and prevent retaliation.

Real-World Challenges and Solutions

Retaliation claims rely heavily on timing and documentation. If an employer takes an adverse action shortly after receiving a complaint even if it is for a legitimate reason it can appear retaliatory. That is why we often counsel our employer clients to hit the pause button, take their time compiling documents, and make sure everything is summarized and documented in a way that is easily understood, and in a short period of time.

For example, we recently worked with a client who terminated an employee who had filed a harassment complaint just weeks before. After we introduced clear performance-related dated documents that predated the complaint and showed the employer consistently applied its disciplinary policy, ultimately the claim failed, and it was convincingly attributable to legitimate concerns as opposed to an act of retaliation. 

Key Takeaways for California Employers

• Develop and implement robust anti-retaliation policies, communicate with ALL your employees, and don’t assume they will actually know the policies.

• Train managers and all employees routinely about what retaliation is and how they can prevent retaliation.

• If you implement a policy, apply it consistently because inconsistently applying policies could be just as damaging if the employee claims bias or retaliation.

• Act quickly and thoroughly investigate and gather facts related to any complaints, and document all aspects of the investigation.

• Document everything. Document employment decisions, document performance issues, and document everything you do to investigate.

What to Do If a Retaliation Claim Occurs

• Acknowledge the claim and inform the employee you take it seriously.

• Speak with legal counsel as soon as possible.

• Look at your company policies that outline procedures related to these claims.

• Investigate thoroughly and in a timely manner, while considering whether or not to use an outside investigator.

• Make complete notes of your investigation and any corrective actions taken.

Why Brereton, Mohamed, & Korte LLP?

Our firm provides extensive prior experience with California employment law, an active approach to risk management, the protection of your business interests, and the assurance that we will charge ahead to protect those interests whether it be through preemptive counseling or thorough preparations in the courtroom. We take the legal risks that accompany nearly all employment situation seriously and we recognize the complexities of California law. Our firm works hard to develop good faith relationships with employers, so they feel more confident on a daily basis navigating the multifaceted landscape that is California. 

If you have received a complaint of workplace retaliation, or would like to avoid one, reach out to Brereton, Mohamed, & Korte to plan your defense here in California.