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Wrongful Termination: What is a protected activity?

Often times when an employee has been terminated, he or she feels as though the termination is wrongful. They may have been treated unfairly or given a reason for their termination that they know to be untrue. Whether or not a termination is wrongful from a legal standpoint, however, involves a different type of analysis.

One of the keys to determining whether a former employee has a wrongful termination claim is whether or not the employee engaged in a protected activity or is a member of a protected class. California and Federal law protect employees from termination, discrimination, and/or harassment only if they fall into one of these categories. And even if they engaged in a protected activity or are a member of a protected class, their termination is only unlawful if their termination is related to their activity or class.

A protected activity is engagement in an activity that the state or government deem worthy of protection. Some examples include making a complaint to a governmental agency or management about unsafe working conditions, complaining to the same about engagement in illegal activity, or even refusing to participate in illegal activity. Protected classes include those based on race, sex, gender identity, disability, and age. These lists are not all inclusive but they provide a broad overview of the most frequent types of cases that employees have.

Once it is established that an employee has engaged in a protected activity or is a member of a protected class, it is then necessary to prove that there was an adverse employment action and that the adverse employment action is related to their protected activity or protected class. The adverse employment element is usually easiest to prove - if you have been fired from your job, you have faced an adverse employment action. Proving the relationship between the adverse employment action and involvement in a protected activity can be more difficult. The employer must be aware, or have some notice that the employee engaged in protected activity and/or is a member of a protected class. It then must be shown that the adverse employment action is at least in part motivated by the employee's participation.

Employers will often come up with a variety of legitimate reasons why an employee was fired. The process of proving that this was not the real reason, that it was merely a pretext, may require litigation where an attorney can use discovery and depositions to prove that the employer acted illegally. If you believe you have been retaliated against because of your engagement in a protected activity or because of your membership in a protected class, it is important to contact an experienced employment law firm immediately. At The Rutten Law Firm, APC, we have years of experience successfully representing employees who have been retaliated against. We can help you navigate this process and ensure that all of your rights are protected.

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