Under both state and federal law, employees are protected from workplace retaliation after engaging in lawful activities, such as making a complaint about discrimination or harassment or reporting unsafe work conditions. Workplace retaliation can take many forms, from wrongful termination to demotions or exclusion from promotion opportunities. It is not always easy to know when you are the victim of retaliation, however, so if you suspect it could be the case, keep notes about all incidences, and contact an attorney who is an expert in employment law. This infographic from The Law Office of Phillip J. Griego examines employee rights in retaliation cases. If you believe you are the victim of retaliation or discrimination in your workplace near San Jose, CA, we can help. Contact us to arrange a review of your case and find out how we can help you protect your career and your rights. Please share this information with your friends and colleagues.
Some employees may hesitate to contact an employment attorney about workers’ rights in San Jose, CA, because they fear retaliation from their employers. Employers are legally prohibited from engaging in acts of retaliation against covered employees who participate in protected activities. Since employment law can be quite complex, it’s advisable to consult an attorney to determine whether retaliatory acts may have occurred.
Identifying Workplace Retaliation
Under federal employment law, illegal workplace retaliation is defined as the adverse action of an employer, employment agency, or labor organization against a covered individual because that individual engaged in a protected activity. These adverse actions include those that try to prevent someone from opposing a discriminatory act, unjustified negative performance evaluations or work references, increased surveillance, and threats that may affect employment. Protected activities include the opposition of a practice that is believed to be unlawful discrimination under federal or California employment law. For example, employees have the legal right to refuse to obey a directive that is reasonably believed to be discriminatory. Employees also have the right to participate in an employment discrimination proceeding, such as serving as a witness in litigation or filing a complaint.
Documenting the Evidence
It’s important for all employees to keep careful records of their employment, even if they have not experienced any adverse actions. When suspected adverse actions do occur, it may be easier to substantiate the claim if documented evidence exists. For example, you should keep all records (correspondence, performance reviews, etc.) that indicate your employer was satisfied or dissatisfied with your work. If your employer suddenly tries to claim that your work is not satisfactory after you filed a complaint, then your records of positive feedback in the past may prove invaluable. If any problems do occur, keep a log that details the incidents, the parties involved, and the dates on which they occurred.
Discussing Your Concerns
If you feel you may be the target of workplace retaliation, you can consult your employer’s human resources representative to try to get an explanation for the problem. If the explanation does not make sense or an explanation is not forthcoming, it’s time to make an appointment with an employment attorney.
Employees and employers alike can turn to The Law Office of Phillip J. Griego for legal guidance on all matters pertaining to employment law. As the managing attorney for his law firm, Mr. Griego draws on his decades of experience to facilitate favorable outcomes for his clients. Before he became an employment attorney near San Jose, CA, Mr. Griego graduated from San Jose State University and went on to earn his J.D. at the Santa Clara University School of Law. He was admitted to the California Bar in 1977 and later was admitted to practice in various federal courts. In 1987, Mr. Griego was admitted to practice in the U.S. Supreme Court.
As a seasoned litigation lawyer, Mr. Griego focuses his practice on employment law, including age discrimination, sexual harassment, trade secrets, commercial litigation, and unfair competition. He has helped employers save millions in costs and has secured millions in compensation for employees. Mr. Griego’s many professional accomplishments include speaking engagements on employment law topics, several published works, and ongoing training opportunities for employers.
In most cases, an employee can be fired at any time and for nearly any reason. Employees can also be fired for no reason at all. This is known as “at-will” employment. However, employment law does recognize several exceptions to this rule. To determine if you may have been the target of wrongful termination, your employment attorney near San Jose, CA, will determine whether your employer may have violated California employment law.
Advise your employment attorney whether you have a written contract or other written document such as an employee handbook or policy and procedure manual applicable to your position. Such documents may list specific circumstances for which you may be fired or it may explain that you can only be fired for good cause, or that the employer must first administer progressive discipline. In that case, your attorney may argue that you are not an at-will employee, but that you were wrongfully terminated in breach of an express or implied contract.
It is often difficult to prove that an employer breached an implied promise of continued employment to an employee. However, your attorney may bring up certain factors to argue this point. For example, your employer may have an employee handbook that details progressive levels of disciplinary action, which may imply that an employee must go through these procedures before being fired. Other factors that the court may consider include verbal assurances of continued employment, the duration of employment, and the violation of the typical employment practices of the employer.
It is a violation of federal and state laws to fire an employee based on a protected class. Inform your attorney if you feel you may have been fired because of your religion, age, national origin, race, color, disability, pregnancy, or genetic information.
Public Policy Violations
In some cases, a wrongful termination claim may be filed on the basis of public policy violations. For example, it may be considered wrongful termination to fire an employee because he or she took time off to vote, serve on a jury, serve in the military or National Guard, or engage in acts of whistleblowing.
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