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Proving employment retaliation in California

Like most states, California generally follows the at-will model of employment, which allows both employer and employee to terminate the employment relationship at any time, for any reason. However, the law sets forth several important exceptions to this rule.

Employers may not fire someone if the reason is that the employee belongs to one of the categories -- or protected classes -- that the law has deemed as particular targets of bias and thus needing stronger protection. Employers may also not retaliate against an employee who has asserted his or her legal rights.

Protected actions

Fear of retaliation can be a powerful reason for an employee to hesitate before filing a complaint alleging discrimination, noncompliance with wage laws, or health and safety violations. On the other hand, the law offers protections to people who report these matters, rather than workers being silenced and the violations proceeding. Employers may also not retaliate against an employee for taking legally protected leave, cooperating with investigations of the employer, or for standing up for another employee's legal rights.

Common types of retaliation

Retaliation can consist of wrongful termination, as well as other negative actions. Some examples include demotion, denial of opportunities and training, and harassment.

Ways employers try to disguise retaliation

Even when it seems obvious, retaliation can be tricky to prove. Most employers will not state they discharged an employee for complaining about sexual harassment or discrimination. Instead, employers claim that the employee deserved the negative treatment because of poor workplace performance. This can include unfair performance reviews and unfair disciplinary actions. One common variation happens when the employer suddenly begins strictly enforcing -- only against one employee -- a rule that is technically on the books but is generally disregarded.

Bolstering a case

To prevail in a legal action for retaliation, a worker will need to show not just that he or she engaged in a protected activity and suffered negative action from the employer, but that there is a connection between these two facts. Employees may have a stronger case if the negative action occurred soon after they engaged in the protected activity, if the employer targeted the negative action at the employee specifically rather than a group of employees, if the employee received different treatment than other employees did in a similar situation, or if the employee can show that negative reviews or disciplinary records contain falsehoods.

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