For years, employees in California have struggled to get justice for workplace retaliation. That’s because workers couldn’t prove their employer’s actions were retaliatory — even if they were fired or demoted soon after they spoke up about problems in their companies.
In fact, the legal standard was so difficult to meet that many employees decided it was better to stay silent. According to a 2022 survey of California workers, 38 percent had experienced a workplace violation, but only 10 percent of those workers filed a report with a government agency. Nearly half didn’t report it to anyone.
Fortunately, a recent update to California labor law is trying to change this dynamic. California SB 497, the Equal Pay and Anti-Retaliation Protection Act, puts more of the initial burden on employers to prove that firings, suspensions and other actions are not retaliation.
SB 497 took effect in January 2024. It creates a prima facie, rebuttable presumption that an employer engaged in retaliation if it took action against an employee within 90 days of that employee engaging in a protected activity under Labor Code section 98.6 or the Equal Pay Act (Labor Code Section 1197.5), which forbids sex-based wage discrimination.
Among other things, protected activity could include:
- Making a written or oral complaint over unpaid wages
- Filing a bona fide complaint about other violations of your labor rights
- Disclosing how much you make
- Talking or asking about other workers’ wages
- Helping or encouraging others to use these and other rights
- Refusing to participate in an activity that would violate a state or federal statute
- Testifying or providing information to a public body conducting an investigation, hearing or inquiry if the employee believes their information reveals a violation of law
In addition to firings and suspensions, retaliation can take several forms, including a reduction in work hours, a demotion or some other negative action.
Employers can challenge the presumption by showing they had a nonretaliatory reason for any adverse actions. The burden of proving retaliation would then fall back on the employee.
This is still helpful for employees. Hearing their bosses’ justifications could give them a greater ability to challenge those arguments in court. It might also make employers think twice before retaliating against their workers.
California’s labor code already allows for rebuttable presumptions in other types of cases, such as retaliation against workers who took paid sick leave or employers that threaten workers with deportation.
SB 497 makes an important change in one other area: If an employer has to pay the civil penalty for retaliation, the money will go to the affected employee.
Under the law, if an employer engaged in retaliation, it can be assessed a civil penalty costing up to $10,000 per employee per violation. Thanks to SB 497, those funds will be given to the employees who suffered retaliation, not the state’s General Fund, where the money used to go. The state’s labor commissioner will determine the exact size of the penalty, based on the violation’s nature and seriousness, as shown in the evidence.
And of course, workers can still press for reinstatement and reimbursement of lost wages and benefits, too.
Workplace retaliation can inflict significant harm on employees who have already suffered unfair treatment in the workplace. Loss of income, loss of opportunity, punitive work conditions — those are just some of the burdens that affected workers face.
At Keller Grover, our team has decades of experience representing employees who were targeted for workplace retaliation. If you have been impacted, learn more about your options by contacting our firm for a free and confidential consultation.