Accusations of retaliation and other illegal behavior by employers have always existed in the workplace in some form or another. However, claims in the last 10 years have reached a record high, and retaliation complaints are now the most common source of legal issues between employers and employees.
This is a disturbing trend that raises many important questions, such as:
- Why are there so many incidents of employer retaliation in the workplace?
- Are there recent changes in the laws that have resulted in a greater number of retaliation complaints?
- How can employers in California reduce the number of claims and lawsuits based on retaliation?
Why Retaliation Complaints are So Common
Labor law violation claims that have to do with retaliation are commonplace for a number of reasons. Additionally, such cases have been filed in greater frequency by California employees in recent years. Reasons for an increase in retaliation claims against companies and businesses may be explained by the following:
- New developments with government legislation and case law
- Greater scope of individuals that are protected against workplace retaliation
- Lowered threshold for an employee’s burden of proof
- Greater range of damages that can be recovered from a lawsuit
- Availability of information and resources for those who are subjected to employer retaliation
As an employer, you may feel that you are in compliance with the laws and do not understand why you are being hit with retaliation claims more often. It’s tempting to ignore the trend and focus on other things, but it’s very important to understand the reasons for why these incidents are so common. Unless you uncover the source of the problem and tackle it head on, you put yourself at greater risk of being sued for retaliatory acts, like wrongful termination and denial of employment rights and privileges.
Elements of a Workplace Retaliation Case
The foundation for a retaliation claim filed by California workers is based on 3 elements:
- The worker was engaging in a work-related activity that’s protected by state / federal employment laws.
- Because of the employee’s actions, the employer reacted with unfavorable or damaging treatment, like demoting the worker to a lower position or firing them.
- The employee has evidence to show a causal (direct) relationship between the protected activity and the employer’s adverse employment decision.
What are Protected Employment Activities?
As an employer in the state of California, it’s essential to understand the activities that are classified as “protected” by California and federal labor laws. Protected employment activities include:
- Reporting a workplace safety violation
- Filing a claim with HR for discrimination and other abusive treatment
- Testifying against the employer in an investigation by law enforcement
- Speaking out against illegal treatment in the workplace, like bullying and harassment
- Speaking out on behalf of a coworker facing discrimination, retaliation, and other unlawful treatment in the workplace
- Asking for reasonable accommodations for a disability or pregnancy (including breastfeeding accommodations)
- Asking for leave under the Family and Medical Leave Act or the California Family Rights Act
Employment laws can be difficult to keep up with, but there is no denying that workers have many rights that must be respected by the employer. If you infringe on these rights, there is a risk of significant financial loss and damage to your brand if the employee succeeds in a claim for retaliation. To learn more about the elements of a workplace retaliation claim, contact our law firm as soon as possible.
How the Past Impacts the Present
The laws that currently exist to protect workers would not have been established were it not for certain cases that illustrate abusive treatment by employers. Past employment lawsuits that were successful laid a foundation for the employment claims that are filed today, which is why it’s helpful to know about legal precedents, such as:
Robinson v. Shell Oil Co: this is the case with the most significant impact on who is covered by anti-retaliation laws. As a result of the ruling on this case, the term “employees” was expanded to include former employees (ones that were wrongfully terminated) under Title VII of the Civil Rights Act.
Kasten v. Saint-Gobain Performance Plastics: because of this case, employees can now file a claim for retaliation even if they complained verbally about unfair treatment in the workplace versus filing a written complaint.
Burlington Northern & Santa Fe Railway v. White : A U.S Supreme Court labor law case that lowered the threshold for how to establish retaliation by an employer.
Laws That Led to Significant Changes in Retaliation Claims
The court cases mentioned above have made crucial changes to various aspects of an employment claim, including who can seek protections for retaliation and the standard of proof that is needed for a claim. A victory for the worker in an employment lawsuit can result in changes with the laws, which include but are not limited to:
- The Civil Rights Act of 1991
- The Whistleblower Protection Enhancement Act of 2012
- The Sarbanes-Oxley Act of 2002
- The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
Thanks to these legal developments, there is now a wider scope of protections for workers at every level if they are subjected to retaliation by their employer.
Human Nature and Its Connection to an Increase in Retaliation Claims
When a retaliation complaint becomes a lawsuit and makes its way to trial, there is a good chance that juries will sympathize with the claimant. After all, it’s human nature to side with people who have gone through experiences you can relate to. The truth is, far too many workers have faced unfair and downright abusive conduct from their employer. So, they can understand where the plaintiff is coming from and what is at stake for the worker. This is a key factor when it comes to wining over a jury and making lasting changes in labor laws that protect current and future employees.
How can Employers Reduce Retaliation Claims in the Workplace?
The greater the number of retaliation complaints, the more likely it is for the employer to face huge losses, whether it’s their finances, reputation, or both. Maintaining a healthy and respectful work environment based on transparency is the key to preventing allegations of retaliation. Below are recommendations on how to reduce the number of retaliation claims by employees:
- Establish and enforce policies that prohibit workplace retaliation: employers must have clear and comprehensive rules that take a zero tolerance stance on retaliation. Additionally, employees should be encouraged to go to Human Resources or their supervisor and speak freely without worrying about negative consequences.
- Training for all employees: Employers must provide training to staff members on how to recognize the signs of retaliation and what to do in these instances. This is a way to empower your workers, and hopefully, resolve such issues internally rather than getting government agencies and the court system involved.
- Actively engage with the affected employee: make sure that you do not ignore or marginalize the employee that’s making accusations of retaliation. This will only worsen the problem and give the employee a stronger case against you, as you are not cooperating with them to solve the dispute. Though it can be difficult, keep the lines of communication open and listen to the employee’s concerns. Then, offer solutions and try to find a compromise that works for everyone.
- Think of Ways to Protect Yourself from Legal Action: there are changes you can make to protect your company from litigation by employees who come forward with allegations of retaliation. Restructuring and policy changes can make it easier to prevent such incidents or keep them from escalating when there is a credible incident. Sometimes, making changes in work teams, offering a more flexible schedule, and other reasonable changes can make a big difference.
- Ensure that all employment decisions are based strictly on job performance: adverse employment decisions must be accompanied by solid, tangible proof that the employee is failing to meet expectations that are part of their job duties. The burden of proof to show that a decision was not based on retaliation is on the employer in the event that a legal case is initiated by the employee.
Contact California Labor Law Employment Attorneys Group
Employers face a lot of challenges where employment laws are concerned, especially when they have to make decisions that will negatively affect one or more workers. A thorough understand of labor laws at both the state and federal levels can help you stay on top of retaliation claims and resolve them with the least damage to yourself and your business.
With that in mind, we would like to offer a free consultation if you have any questions or concerns about a retaliation claim by an employee. Whether you received a notice from the state labor department or a lawsuit has been filed, we are ready to guide you through the legal system, one step at a time. We can help you through whatever issues are currently affecting your company and develop a plan to prevent future retaliation complaints. Don’t hesitate to contact our office and talk to a California employment attorney.
