When an employee engages in a protected activity, be it refusing to break the law or reporting unsafe work conditions, he or she should be protected from any adverse action from an employer. This is the basic principle underlying the various anti-retaliation laws in California – an employer can’t retaliate against an employee for engaging in a protected activity. In practice, bringing a successful anti-retaliation claim against an employer can be more involved. Sometimes, even when an employee has clearly engaged in a protected activity, he or she may not be successful in bringing a claim. If, for example, an employer had a legitimate reason for firing the employee it is up to the employee to show that the protected activity was a substantial motivating factor in the retaliation.
There are several elements that need to be proven in order to succeed in a retaliation claim. The employee must show engagement in a protected activity, employer awareness of the protected activity, adverse employment action, and a causal relationship between the protected activity and the adverse action. If the employee is able to make his or her initial case, the burden shifts to the employer to show a legitimate basis for the adverse action. This is where it gets difficult for the employee. At almost any corporation, be it large or small, it is not difficult for an employer to come up with some justification for its reprimand of an employee. An unimpeachable record is almost impossible, even for the most diligent and loyal employee, when the employer controls all the variables in a subjective analysis. So it falls back to the employee to prove that, at a minimum, the employee’s engagement in a protected activity was a substantial motivating factor in the adverse action.
The first step for an employee is to show that the employer was aware of his or her engagement in a protected activity. Then an employee can prove motive a number of different ways. The employee can show proximity in time between the protected activity and the adverse action. If the two are close together it is more likely that the employer had a retaliatory intent. An employee can also show that the employer opposed the employee’s engagement in the protected activity. Finally an employee can show that the reason given by the employer is false or just a pretext for retaliation. California courts will look to the totality of the circumstances in order to determine motive. So if an employee can easily disprove the employer’s given reason for adverse action, can show how close together the protected activity and adverse action were in time, and can show that the employer opposed the employee’s engagement in the activity – he or she would have a very strong case. Importantly, it is not necessary for an employee to show all of these, but in a totality of the circumstances analysis, the more the better.
It is easy to see how employers have a built-in advantage when it comes to litigating retaliation cases. Not only are they able to make the rules up for discipline in the workplace but they are also in control of all of the evidence. This is one of the many reasons why victims of retaliation need to contact knowledgeable attorneys immediately. The more time that has elapsed, the more difficult it might become to ensure that all of an employee’s rights and remedies are protected. At The Rutten Law Firm, APC we have successfully represented individuals who have been retaliated against by their employers. We are passionate about worker’s rights and can help level the playing field when an employee has been victimized by their employer.