Retaliation and Wrongful Termination/Whistleblower Actions

Retaliation involves cause and effect based in large part on the proximity in timing between the protected act and the employer’s decision to terminate, demote or other adverse employment action. For example, if an employee reported sexual harassment on Monday, April 1st and was terminated a week later on April 8th, the lack of an intervening act between the protected reporting activity and the termination can establish a claim for retaliation.

There are several different ways in which an employer can retaliate against an employee, however, the most common is termination or demotion. Some of the laws that protect employees from retaliation are as follows:

  • Opposing/Reporting Discrimination/Harassment: It is unlawful for an employer to retaliate against an employee because they opposed discrimination and harassment or made a complaint of discrimination or harassment. (FEHA, Gov’t Code § 12940(h)

  • Victim of Stalking/Sexual Assault/Domestic Abuse: It is unlawful to terminate an employee or engage in adverse actions against the employee because the employee was a victim of domestic violence or stalking. (California Labor Code §§ 230 and 230.1)

  • California’s “General Whistleblower’s Law,” prohibits employers from:
    • Maintaining policies preventing employees from reporting unlawful conduct.
    • Engaging in retaliation against an employee for reporting unlawful conduct by the employer and/or;
    • Engaging in retaliation against an employee who refuses to participate and an activity that the employee reasonably believes is in violation of law.

  • Employer prohibited from retaliating against an employee for making a complaint about wages. California Labor Code § 98.6

  • Unlawful for an employer to retaliate against an employee for reporting a workplace injury. California Labor Code § 6310

  • Sarbanes Oxley Act of 2002, 18 U.S.C. § 1514A (“SOX”), was enacted to protect investors of publicly traded corporations from fraud, and requires senior management to certify the accuracy of financial statements and implement controls and reporting methods. In addition, it provides protections for employees to report corporate fraud from retaliation and/or termination as a result of reporting the fraud.

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