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EMPLOYMENT LAW BULLETIN Vol. 00, No. 11 Courtesy of Eskridge Law, Attorneys at Law The topic of this month's bulletin is retaliation. The advice is simple - don't do it! Retaliation is illegal and can result in large verdicts against employers. Retaliation consists of some adverse action against an employee because the employee either engaged in some activity protected by law or assisted a co-worker in doing the same. For example, if an employee complains that he/she is being discriminated against because of age, and the employer then demotes the employee or takes some other adverse employment action against the employee, that could constitute retaliation. Whether it actually does constitute retaliation depends on the employers' motive. The employer may say the employee would have been demoted anyway, and that it had nothing to do with the employee's complaint. This is a question of fact, however, which a jury would decide. Retaliating against an employee for complaining about discrimination or harassment related to race, national origin, religious creed, ancestry, gender, sexual orientation, physical disability, mental disability, medical condition or marital status is illegal. It is also illegal to retaliate against an employee for requesting or taking pregnancy leave, disability leave or leave under the Family and Medical Leave Act or the California Family Rights Act. It is also illegal to retaliate against an employee for filing a workers' compensation claim, for complaining about a Labor Code violation, or even for requesting to see his/her personnel file. Also illegal is retaliation against an employee for complaining of ethical violations and violations of laws not relating to employment. This includes such things as complaining about business practices, billing practices, safety issues, business compliance issues of any sort, and illegalities of any sort. Complaining that the employer is violating FAA or OSHA regulations falls into this category. Interestingly, the employee does not even have to be legally correct in assessing the matter. For example, if an employee is fired in retaliation for complaining that the employer is illegally violating FAA regulations, but in fact the employer was complying with FAA regulations, the employee still has a viable retaliation claim. Retaliation against an employee who testifies in support of another employee, or complains on behalf of another employee, is generally also illegal. The second employee need not testify in any formal proceeding in order to be protected from retaliation. Simply reporting a wrong to a manager would be sufficient. An employee need not have been terminated in order to have a viable retaliation claim. There need only have been some adverse job action. This would include demotion, unwanted transfer, adversely changing the employee's working conditions, shortening the employee's hours, putting the employee on the night shift or making the employee do menial tasks, among other things. Not just employers, but even individual managers and supervisors can be sued for retaliation. While the burden of proving the required retaliatory motive is on the employee, this is little consolation to an employer which has to bear the expense and inconvenience of a jury trial. In the end, the employer must be able to convincingly demonstrate that whatever happened to the employee had nothing whatsoever to do with the employee's earlier protected action. Eskridge Law, Attorneys at Law, may be contacted by phone (310/792-7021), by fax (310/792-7022) or by e-mail (geskridge@ealaw.net). Please visit our web site at ealaw.net or employmentattorneys.net.
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