Navigating Employee Retaliation Claims: A Guide for California Employers

In the complex landscape of California labor laws, employee retaliation claims account for approximately 45% of all complaints filed with the U.S. Equal Employment Opportunity Commission (EEOC).

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Understanding Workplace Retaliation

Simply put, retaliation is an adverse act against an employee who has engaged in a protected activity, such as reporting an unlawful behavior. Retaliatory conduct can even be non-work-related; also, it may originate from a coworker or a superior.

Per the EEOC, “A manager may not fire, demote, harass or otherwise ‘retaliate’ against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, disability and genetic information also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.”

Examples of retaliatory conduct include but are not limited to:

• Reprimand an employee or give them a performance evaluation that is lower than it should be;
• Transfer the employee to a less desirable position;
• Engage in verbal or physical abuse;
• Threaten to report to the authorities, such as reporting immigration status;
• Spread false rumors;
• Increase scrutiny;
• Treat a family member negatively, such as terminating the contract of the spouse; and
• Make the person’s work more difficult, such as changing their work schedule.

In addition, the EEOC includes “pre-retaliation” conduct, i.e., attempting to keep employees from raising issues or seeking reasonable accommodation.

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How to respond to retaliation claims

When faced with retaliation, California employers should:

1. Take all complaints seriously: Even if it seems frivolous, it should be treated with the utmost seriousness.
2. Consult legal counsel: Immediately contact your attorney for guidance.
3. Understand that intent isn’t required: Retaliation can occur even without ill will, and well-meaning actions can be perceived as retaliatory; for instance, a manager may try to support the complainant by attempting to relocate them or change their shift to separate them from the accused, but the complainant may find it inconvenient or detrimental.
4. Consider relationship repair: Having the accused acknowledging the complainant’s feelings and explaining why they acted in a way that might have been perceived as retaliatory can help mend working relationships.

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Preventing Retaliation Claims

To minimize the risk of employee complaints in California relating to retaliation, employers should:

• Implement clear anti-retaliation policies to ensure all employees understand what constitutes retaliation and the consequences of such actions.
• Provide regular training to educate employees and managers about retaliation and protected activities.
• Foster a culture of open communication to encourage employees to report issues without fear of reprisal.
• Conduct impartial, unbiased, and thorough HR investigations for retaliation allegations.

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The role of workplace investigations

When an employee reports retaliatory conduct, the California employer’s legal requirement to investigate is triggered. In addition, performing prompt, impartial, and unbiased administrative investigations of a claim relating to retaliation promotes a safe and compliant workplace environment where employees know that the organization’s policies are consistently implemented.

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Why choose California Labor Solutions???

California Labor Solutions (CLS) is one of the only HR firms licensed* to conduct workplace investigations in California. We serve private businesses and public-sector organizations throughout the state. We have conducted hundreds of neutral, impartial, objective, and unbiased workplace investigations related to identifying issues and risks within the organization as well as for employee complaints relating to allegations of discrimination, harassment, retaliation, workplace violence, and various types of employee misconduct with the utmost quality, detail, and efficiency.

*California Private Investigator License Number 26311.

Disclaimer

Please note that the updates, advisories, and regulations we receive from the promulgating agency often contain ambiguities and/or are often amended, modified, or updated. This material/article/email does not contain any legal advice. The information and opinions expressed herein are based on our reasonable interpretation of the issuing agency’s publication at the time the opinion is expressed and is, therefore, subject to change based on further developments. The effect of the opinions expressed may be different based on your particular circumstances, and it is recommended that you not rely upon these general opinions prior to obtaining a consultation with your legal and/or financial advisors.