Retaliation Statutes
California employers think retaliation is just about discrimination complaints. They’re missing three separate statutes with different protected activities.
California has multiple retaliation statutes protecting different types of employee complaints and activities. Violate any of them and you face separate liability under each statute.
Here’s what California employers get wrong about retaliation protections:
❌”We can’t retaliate for discrimination complaints”—True, but that’s only FEHA retaliation. What about wage complaints? Safety complaints? Whistleblower complaints?
The three major California retaliation statutes are:
**FEHA Retaliation (Government Code § 12940(h))**
Protects employees who oppose discrimination, harassment, or other FEHA violations. Also protects employees who participate in FEHA investigations or proceedings.
**Labor Code Retaliation (Labor Code §§ 98.6, 1102.5, 1102.6)**
Protects employees who complain about wage and hour violations, file wage claims with the Labor Commissioner, or report illegal activity. Also protects whistleblowers who report violations to government agencies.
**Health & Safety Code Retaliation (Health & Safety Code § 6310)**
Protects employees who complain about workplace safety hazards, file Cal/OSHA complaints, or refuse unsafe work.
These statutes protect DIFFERENT activities. An employee can have retaliation claims under multiple statutes from the same adverse action.
Example: Employee complains about unpaid overtime (Labor Code protection), unsafe working conditions (Health & Safety Code protection), and sexual harassment (FEHA protection). You terminate her. She now has three separate retaliation claims under three different statutes.
California employers make these critical mistakes:
→ Thinking only discrimination complaints are protected
→ Retaliating for wage complaints because “that’s not discrimination”
→ Disciplining employees who raise safety concerns
→ Terminating whistleblowers who report illegal activity
→ Not understanding that informal complaints are protected
Retaliation protection extends beyond formal complaints. An employee mentioning to their supervisor that they didn’t get their meal break? Protected activity under Labor Code. An employee telling coworkers about a safety hazard? Protected under Health & Safety Code. An employee saying a comment made them uncomfortable? Potentially protected under FEHA.
The temporal proximity between protected activity and adverse action creates a presumption of retaliation. Employee complains on Monday, gets written up on Wednesday? That’s suspicious timing that shifts the burden to you to prove legitimate, non-retaliatory reasons.
What makes California retaliation claims particularly dangerous: The remedies are substantial. Employees can recover lost wages, emotional distress damages, punitive damages, and attorneys’ fees. FEHA allows uncapped compensatory and punitive damages. Labor Code retaliation includes statutory penalties.
You can’t defend retaliation claims by showing the employee’s complaint was wrong. Protection exists even if the underlying complaint is mistaken, as long as the employee reasonably believed a violation occurred.
California employers must understand: Multiple statutes protect different types of complaints and activities. You can’t retaliate for ANY protected activity, regardless of which statute applies.
Train supervisors to recognize protected activity. Wage complaints are protected. Safety complaints are protected. Discrimination and harassment complaints are protected. Whistleblower reports are protected.
Document legitimate, non-retaliatory reasons for adverse actions. If you need to discipline or terminate someone who recently engaged in protected activity, ensure you have clear, documented, contemporaneous business reasons unrelated to the protected activity.
Review timing carefully. Adverse action shortly after protected activity creates inference of retaliation. If you must take adverse action after an employee complains, document thoroughly why the action is unrelated.
Are your employment decisions creating retaliation liability under multiple statutes?
#Retaliation #FEHA #LaborCode #EmploymentLaw #Whistleblower #WorkplaceSafety #HRCompliance
Please note that this article is for informational purposes only and should not be considered and is not legal advice, and does not constitute an attorney-client relationship. It is recommended to consult with an attorney directly for specific guidance pertaining to your business or individual situation.
This post shares general information based on common patterns I see in California workplaces. It is not legal advice, does not create an attorney-client relationship, and outcomes depend on specific facts — no lawyer can guarantee a result. Past results do not guarantee or predict future outcomes. AI may have been used to create this post. All content reviewed by a CA attorney before publication. This post may be attorney advertising.
Michael Trust Law, APC, 703 Pier Avenue, Ste. B367, Hermosa Beach, CA 90254: michaeltrustlaw.com