One of the most common fears employees have when contemplating a workplace complaint is: "Will my employer retaliate against me?" This fear is often justified, retaliation does happen. However, California law provides strong protections against retaliation, and understanding these protections is essential to knowing your rights and recognizing when retaliation occurs.
What Is Retaliation?
Retaliation occurs when an employer takes an adverse action against an employee in response to the employee engaging in protected activity. "Adverse action" means any negative employment consequence, and "protected activity" includes a broad range of complaints and disclosures protected by law.
Examples of Adverse Actions
- Termination or threat of termination
- Demotion or removal of responsibilities
- Reduction in hours, pay, or benefits
- Negative performance reviews or disciplinary action unrelated to actual performance
- Transfer to less desirable location or position
- Exclusion from meetings, projects, or opportunities
- Hostile treatment or increased scrutiny
- Negative references to future employers
- Threats of any adverse action
Protected Activity in California
California law protects employees from retaliation for numerous types of complaints and disclosures:
Wage and Hour Complaints
The statute aimed squarely at this is Labor Code § 98.6, not § 1102.5. Section 98.6 protects an employee who files a complaint with the Labor Commissioner, complains about unpaid wages, initiates a PAGA action under § 2699, or testifies in a related proceeding. Its remedies are concrete: under § 98.6(b)(1) the employee is entitled to reinstatement and reimbursement for lost wages and work benefits, and under § 98.6(b)(3) an employer who violates the section is liable for a civil penalty not exceeding $10,000 per employee for each violation.
Section 98.6 also carries the timing rule most worth knowing. Under § 98.6(b)(1), if the employer takes prohibited action within 90 days of the protected activity, there is a rebuttable presumption in the employee's favour. That presumption sits in § 98.6 and in § 1197.5 for equal pay claims. It is not in § 1102.5, notwithstanding a good deal of published commentary that says otherwise.
Labor Code § 1102.5 is the separate whistleblower provision. It can cover a wage complaint, because a wage violation is a violation of law, but it is aimed at disclosures of legal violations to a government agency or to someone with authority over the employee, and at refusals to participate in unlawful activity.
Health and Safety Reporting
Labor Code § 6310 is the provision. Subdivision (a)(1) reaches an oral or written complaint made to the Division of Occupational Safety and Health, to other agencies with safety responsibility, or to the employer or the employer's representative — so an internal complaint counts, which is the part employees most often assume is unprotected. Participation in an employer-employee occupational health and safety committee is also protected. Under § 6310(b) an employee discharged, threatened with discharge, demoted, suspended, or otherwise discriminated against for a bona fide safety complaint is entitled to reinstatement and reimbursement for lost wages and work benefits.
Workers' Compensation Claims
Labor Code § 132a prohibits it, and this claim works differently from the others on this page in two ways that matter. First, the Workers' Compensation Appeals Board has jurisdiction to hear and finally determine it, so the claim is filed there rather than with the Labor Commissioner or in superior court. Second, the deadline is short: a § 132a claim must be filed not more than one year from the discriminatory act or the date of termination.
The remedies are also capped in a way the other statutes are not. For discrimination based on filing or receiving benefits, § 132a provides increased compensation by one-half, but in no event more than $10,000, costs and expenses not in excess of $250, and reinstatement with reimbursement for lost wages and work benefits.
Discrimination and Harassment Complaints
Under California's Fair Employment and Housing Act (FEHA), employees are protected from retaliation for reporting discrimination, harassment, or hostile work environment based on protected characteristics (race, gender, age, disability, etc.).
Family and Medical Leave Requests
Employees cannot be retaliated against for requesting or taking FMLA, CFRA, or other protected leave for medical or family reasons.
Jury Duty and Witness Duty
Retaliation for jury service or witness duty is illegal and constitutes a violation of public policy.
Refusing Illegal Acts
Employees are protected when they refuse an employer's request to violate a law or regulation.
Whistleblower Disclosures
Various whistleblower statutes protect employees who report illegal conduct to government agencies or refuse to participate in unlawful activities.
The Legal Test for Retaliation
There is no single test. The standard depends on which statute the claim arises under, and the differences decide cases. The framework below is the one that applies to a Labor Code § 1102.5 whistleblower claim, and it is the most favourable to employees in California employment law.
- The employee engaged in protected activity (complaint, report, or refusal)
- The employer knew or reasonably knew of the protected activity
- The employer took an adverse employment action
- The protected activity was a contributing factor to the adverse action, shown by a preponderance of the evidence
Then the burden shifts, and this is the half most summaries leave out. Under Labor Code § 1102.6, once the employee has demonstrated by a preponderance that the protected activity was a contributing factor, the employer bears the burden of proving by clear and convincing evidence that it would have taken the same action for legitimate, independent reasons anyway. Clear and convincing is a materially higher standard than preponderance, and it is the employer who must meet it.
That framework, and not the familiar three-step McDonnell Douglas burden-shifting analysis, is what governs a § 1102.5 claim. The California Supreme Court settled the point in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, holding that the Legislature enacted § 1102.6 to supply the standard and that courts should apply it. If you encounter a summary applying McDonnell Douglas to a whistleblower claim, it predates or overlooks Lawson.
A FEHA retaliation claim under Government Code § 12940(h) is analysed differently, and a § 132a workers' compensation claim differently again. Do not assume the contributing-factor standard travels to every retaliation theory.
The timing of the adverse action relative to the protected activity is critical. If an employer terminates or demotes an employee within days or weeks of a complaint, this timing alone may be strong evidence that retaliation occurred.
Signs Your Employer May Be Retaliating
Sudden Change in Treatment
A dramatic shift in how your employer or supervisor treats you, from positive or neutral to hostile or critical, following a complaint may indicate retaliation. This includes sudden "performance concerns" that were not previously documented.
Negative Performance Reviews After Positive History
If you received positive reviews before lodging a complaint and suddenly receive critical reviews afterward, this may evidence retaliation, especially if the reviews lack specificity or are inconsistent with actual performance.
Isolation or Exclusion
Being excluded from meetings, projects, or social functions involving your team, or being isolated from colleagues after a complaint, may indicate retaliation.
Increased Scrutiny or Discipline
Your employer may suddenly enforce rules against you that are not enforced against similarly situated employees, or apply discipline more harshly to you than to others for similar conduct.
Threats or Warnings
Your supervisor may make comments like "I hope you don't expect to work here much longer" or "people who cause problems here don't stay long," which could constitute retaliation or threats of retaliation.
Undesirable Reassignment
A reassignment to a less desirable location, shift, or position, or removal of responsibilities without business justification, may be retaliatory.
Demotion or Compensation Reduction
Unexplained demotions, pay cuts, or reduction in benefits following a complaint are classic signs of retaliation.
How to Document Retaliation
Keep Records of the Protected Activity
If you made an internal complaint, keep copies of emails, complaint forms, or written reports. If you reported to an external agency, maintain copies of the complaint and any documentation received from the agency.
Document the Adverse Action
Record dates, times, what happened, and who was involved. For written actions like performance reviews or disciplinary notices, keep copies. For verbal interactions, write a memo to yourself immediately afterward noting what was said.
Note Timing
Document the date of your complaint and the date of the adverse action. The shorter the gap, the stronger the evidence of retaliation.
Identify Witnesses
Note the names of colleagues who witnessed adverse actions or who can testify about changes in how you were treated.
Compare Treatment
Document how similarly situated colleagues without complaints are treated differently. For example, if your colleague was late to work but not disciplined, while you were disciplined for the same conduct, note this.
Preserve Communications
Save all emails, text messages, and other communications with your employer. Do not delete or alter anything.
What to Do If You Believe You're Being Retaliated Against
Report the Retaliation
First, report the retaliation internally to HR or senior management. Provide a written complaint explaining what happened and requesting investigation. Keep a copy for yourself.
Retaliation Complaints with Government Agencies
Depending on the type of retaliation involved, complaints may be filed with:
- California Labor Commissioner — retaliation claims under laws within the Labor Commissioner's jurisdiction, including § 98.6 and § 6310. Under Labor Code § 98.7(a)(1) the complaint must be filed within one year of the violation, though that period may be extended for good cause
- California Civil Rights Department (CRD) — FEHA retaliation, for discrimination or harassment complaints. Three years from the unlawful practice under Government Code § 12960(e)(5)
- Cal/OSHA — safety complaints themselves. The retaliation claim under § 6310 is handled by the Labor Commissioner, so do not let a Cal/OSHA safety filing stand in for a retaliation complaint
- Workers' Compensation Appeals Board — has jurisdiction over Labor Code § 132a workers' compensation retaliation claims. One year from the discriminatory act or the termination
You do not have to pick one and wait. Labor Code § 98.7(g) provides that there is no requirement to exhaust administrative remedies or procedures in the enforcement of that section, and § 98.7(f) provides that its rights and remedies do not preclude pursuing any other rights and remedies under any other law. So filing with the Labor Commissioner is not a precondition to a lawsuit on a Labor Code retaliation theory. FEHA is different: a CRD filing is part of the route there, so do not generalise from one to the other.
Explore Your Options
Retaliation cases are complex and require careful handling. An employment attorney can advise you on the strength of your claim, your remedies, and whether litigation or mediation is the better path forward.
Do Not Resign
Unless your working conditions are truly intolerable and pose a safety risk, do not resign. Resigning may complicate your claim and weaken your position. If you are terminated, that is stronger evidence of retaliation than a voluntary resignation.
Remedies for Retaliation
If retaliation is found to have occurred, remedies typically include:
- Reinstatement to your position or a comparable one
- Back pay and lost benefits
- Front pay if reinstatement is not feasible
- Emotional distress damages
- Punitive damages in cases of particularly egregious conduct
- Attorney's fees and costs (in certain cases)
The Bottom Line
California's retaliation protections are strong, but only if you document what happens and take action. If you believe you're being retaliated against, do not stay silent or accept it passively. Document what is happening and consider consulting with an employment attorney. Retaliation is illegal, and employers who engage in it should be held accountable.
Consider Mediation for Retaliation Disputes
Retaliation disputes can often be resolved through mediation if the employer is willing to engage. Mediation can result in faster resolution, protection of your employment or benefits, and restoration of workplace relationships, outcomes that litigation may not achieve.