Retaliation is a broadly-defined word which addresses any “adverse employment action” in response to an employee’s complaint regarding (or enforcement of) a legal right. Under these circumstances, retaliation is actually a form of discrimination, and which can damage an employee’s psychological, physical and financial well-being. Retaliation is not limited to a particular type of punishment, although it most commonly results in involuntary termination or suspension of employment, harassment and/or wage reduction/loss.
No. As stated above, retaliation can come in many forms, meaning that retaliation can be, for example, harassment that may have no impact whatsoever on wages.
Although retaliation can take many forms - far too many to list here - some of the more common types of retaliation (along with the relevant California Labor Code Sections) relate to:
- “Blacklisting” (Sections 1050 and 1054): Blacklisting may occur when an employer attempts to prevent a former employee from acquiring new employment elsewhere. This conduct can also be a misdemeanor.
- Labor Union Activity (Section 923): Employers may not unreasonably interfere with workers’ rights to free association or to self-organize.
- Opposing Unlawful Discrimination (Section 12940): Employers may not punish workers for standing up against unlawful discrimination in the workplace.
- Seeking Legal Representation (Section 923): Discussing and/or retaining legal counsel is a protected activity.
- Testifying in Court and Jury Duty (Section 230): An employer cannot retaliate against you for participating in jury duty or appearing in court as the result of a subpoena or court order. All that the law asks is that, if possible, you give your employer reasonable notice.
- Overtime and Other Wage Filings (Section 98.6): An employer cannot treat you adversely for filing or taking part in such lawsuits. Since our law firm is devoted to overtime and other forms of wage underpayment cases, we take this particular form of retaliation (although somewhat rare) very seriously. Simply put, we will not stand for it.
- Workers’ Compensation Filings (Section 132a): It is also a misdemeanor to punish an employee for considering and/or filing a claim for industrial injury compensation.
Many of the statutes that address retaliation claims also include a provision for the recovery of attorneys’ fees, an important feature of those laws since the legal work necessary to bring those cases to trial can be significant. Moreover, an employer faced with the potential of reimbursing a worker for his/her attorneys’ fees is highly motivated to resolve the dispute informally and reasonably.
The odds that a retaliation claim could be litigated in a class action are much lower than for many other types of lawsuits since retaliation can affect people very differently and can turn on a host of circumstances. Demonstrating that each member of the class was mistreated in the same or nearly the same manner is sometimes very difficult.
If you have experienced retaliation, we recommend you contact an attorney immediately.
If your retaliation claim has resulted from your taking legal action, the following are possible:
- Your retaliation claim can be added as a new and separate claim in an existing lawsuit
- Your retaliation claim can be the basis of a new and potentially far more valuable lawsuit and/or
- Your claim can be used as evidence in settlement negotiations that may result in a far better result than might otherwise have been possible
Whatever you decide to do about it, unlawful retaliation is a serious offense that should, one way or another, be addressed quickly and aggressively by you and/or your attorney.
These questions and answers are for educational purposes only and cover just a few topics that are commonly of interest to workers. This material should not be construed as legal advice, the establishment of an attorney-client relationship, or as indicative of a particular outcome regarding any legal issue you might have.