When an employee tells his or her supervisor or the human resources department about harassment that the employee has been the target of or complains to the payroll department that the employee and other coworkers are not being paid properly, the employer may take too long to make any corrections to their unlawful practices or may not make any corrections at all. The employer, through its executives, supervisors, managers, and co-workers, may instead choose to demote the employee who made the complaint, deny the employee a promotion, continue the harassment and discrimination, or, as many Brea and Fullerton employees have discovered, fire the employee. Sadly, these scenarios are common in civil lawsuits alleging a cause of action for wrongful termination or retaliation.
The legal definition of “Retaliation” differs drastically from the way in which it is used in our everyday language. Retaliation occurs when an employer takes an “adverse employment action” against an employee due to the employee engaging an activity protected under the law, such as filing a wage or retaliation complaint with the California Labor Commissioner or another state or federal agency or filing an “anonymous” grievance directly with the employer about wage and hour issues, or due to the employee exercising or attempting to exercise some other right afforded under the law. Retaliation can occur even when an employee is not terminated.
Employees are protected from retaliation by their employers under various California and federal statutes, such as California Labor Code, California Family Rights Act, Americans with Disabilities Act, and California Fair Employment and Housing Act. Many of these laws, such as California Labor Code section 1102.5, impose penalties up to $10,000 per violation against employers who are found to have violated the law. Wrongful termination, a form of retaliation, is also forbidden under California tort law, which means that employees are entitled to recover for mental and emotional distress and for punitive damages if they are wrongfully terminated.
A common misunderstanding among employees is that unless the employee is fired, he or she cannot file a lawsuit against the employer. Retaliation can occur even if there is no firing. Also, an employee may have a claim against the employer for “constructive discharge.” Constructive discharge differs from wrongful termination because, even though the employer may have acted unlawfully, the employee has not been fired by the employer. Instead, the working conditions that the employee is forced to work in become so unbearable and intolerable that the employee is left with no choice but to resign. As a result, the law regards the resignation as a legal termination. Employees who file a claim for constructive discharge are entitled to similar remedies as employees who bring a lawsuit for wrongful termination.
Bringing a retaliation claim, whether under tort law or under California or federal statutes, or both, requires a careful analysis of an individual’s facts and a comprehensive understanding of the law. There are also very strict deadlines within which an employee must file a claim. Otherwise, the employee can be completely barred from filing a claim or a lawsuit in superior court or any other forum.
We invite you to learn more about your workplace rights by clicking on the links below: