Numerous state and federal laws explicitly forbid employers from retaliating against employees who assert their legal protections. Retaliation is a broad claim that is often blatantly committed by employers and management. Generally, retaliation occurs when an employer perpetrates a hostile action or series of actions against an employee shortly after the employee had taken a legally protected action that is usually detrimental to the employer.
To prove retaliation, the employee must show:
- The employee engaged in a legally protected activity;
- The employer took adverse employment action(s) against the employee; and,
- A direct connection between the employee’s activity and the adverse action exists.
After the employee proves his or her case, the court allows the employer to show that there was a legitimate reason for the adverse employment action, other than retaliation. If the employer succeeds in showing a legitimate reason, the employee must show that the employer would not have taken the adverse employment action but for the initial protected action.
Astanehe Law represents California employees who suffered workplace retaliation. Contact Astanehe Law today for your consult.
Generally, examples of legally protected activities include:
- Filing informal or formal complaints to HR or management;
- Making a charge against the employer, such as for harassment or discrimination;
- Testifying against the employer in a legal proceeding or investigation;
- Participating in any legal proceedings or investigations against the employer; or,
- Opposing an employer’s unlawful action, policy, or practice, such as harassment or discrimination.
The protects an employee’s irrelevant testimony, such as disparaging and derogatory comments regarding a co-worker made during a deposition. Glover v. South Carolina Law Enforcement Div., 170 F. 3d 411, 413 (4th Cir. 1999).
Opposition to an employer’s unlawful employment policy or practice is a legally protected activity. California Government Code § 12940(h). This includes an employee’s refusal to obey an employer’s discriminatory order. Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1046 (2005). An employee can also oppose an unlawful policy or practice by:
- Filing a report to the employer;
- Sending letters to governmental agencies complaining about the unlawful activity; and,
- Calling the police.
An employee encouraging other employees to quit and sue their employer is a legally protected activity. Bel Air Internet, LLC v. Morales, 20 Cal. App. 5th 924, 944 (2018).
An employer that fires, disciplines, punishes, or takes hostile action against an employee for engaging in protected behavior violates the law. This violation gives rise to a claim for employment retaliation. If your participation in legally protected activity that resulted in employer retaliation, contact Astanehe Law now for your consultation.
Adverse employment actions are often obvious, such as when an employer terminates an employee immediately after reporting age discrimination to HR. However, adverse employment actions are not always clear cut. Employers can force employees to suffer subtle indignities such as:
- Denying trainings;
- Denying a promotion;
- Unwarranted poor performance reviews;
- Changing job responsibilities or duties;
- Subjecting the employee to over scrutiny; or,
- Providing inaccurate and poor references.
To successfully assert a retaliation claim, the employee must prove that a direct connection between the protected conduct and the retaliatory act(s) exist. Courts use various factors in deciding whether such a connection exists, including:
- Who made the job decision against you;
- Whether the deciding person knew about the employee’s legally protected activity;
- Employee’s prior work record; and,
- The timing of employee’s actions and the employment decision. A shorter timeframe suggests a connection.
Damages for employees who suffered retaliation depend on the severity of the retaliation and the employee’s specific facts. Common measures of damages include back pay, front pay, lost wages and benefits, out-of-pocket costs, and medical costs, if any. More rarely, damages can include reinstatement and the award of punitive damages.
Back pay is the difference between the compensation an employee would have earned in a job the employee was denied and the amount that the employee earned, or could have earned in the same area. Back play reflects total earnings and includes possible pay raises and promotions.
Front pay reflects the future earnings expectancy that has been lost or diminished. Courts generally award such damages when reinstatement to the former position is not feasible or advisable. Fadhl v. City & Cty. of San Francisco, 741 F. 2d 1163 (9th Cir. 1984).
Fringe benefits or employment perks are non-wage or salary compensation such as stock options, meal and travel allowances, and savings or retirement plan contributions. To collect lost or denied fringe benefits, an employee must establish: (1) These benefits would have been received and are not speculative; and, (2) Their loss flows naturally from the wrongful termination. Panhandle Eastern Pipe Line Co. v. Smith, 647 P. 2d 1020 (Wyo. 1981).
Reinstatement occurs where the settlement or judgment calls for employee restoration to the former position after a wrongful discharge. If accepted, the employer may still be required to fulfill a back pay award. However, front pay damages are not typically concurrently awarded with reinstatement.
Courts award punitive damages when the wrongful termination occurs with an intentional wrong, insult, abuse, or gross negligence to constitute an independent tort.
Employees can also recover out-of-pocket costs associated with the wrongful termination.
You will not owe Astanehe Law a penny until after you obtain a successful settlement or judgment. Astanehe Law offers contingency representation which means there is no upfront cost in securing legal representation.
Michael M. Astanehe possesses a zeal for helping employees bring claims against their employers. Mr. Astanehe is an aggressive litigator with several years of civil litigation experience. He is willing to take your case to trial, if necessary. This ferocity ensures that Astanehe Law will obtain the highest recovery possible for each client.
Litigation is stressful. To that end, Mr. Astanehe provides each client with comprehensive legal service so that they remain fully-informed and comfortable throughout the process.
With Astanehe Law on your side, you are poised to obtain the maximum recovery possible. Contact us today for your consultation!