Topics: Discrimination, Harassment & Retaliation, New Laws & Legislation
On October 8, 2023, California Governor Gavin Newsom signed into law Senate Bill (SB) 497, which makes it easier for employees to establish retaliation claims in California.
SB 497 (the Equal Pay and Anti-Retaliation Act) goes into effect on January 1, 2024. The new law amends California Labor Code Sections 98.6, 1102.5, and 1197.5 to create a rebuttable presumption of retaliation if an employer takes an adverse action against an employee within 90 days of the employee engaging in certain protected activity.
An employee must first establish a prima facie case of retaliation by demonstrating that: (1) the employee engaged in a protected activity; (2) the employer engaged in an adverse action against the employee (such as a discharge, demotion, threat of discharge or demotion, suspension, pay cut, or reduced hours); and (3) a causal nexus between the protected activity and adverse action. The burden then shifts to the employer to identify a legitimate, non-retaliatory reason for the action. Thereafter, the burden shifts back to the employee to show that the employer’s non-retaliatory reason was merely a pretext for retaliation.
Now, SB 497 makes it easier for employees to satisfy their initial burden if the adverse action occurs within 90 days of the employee engaging in protected activity. As an example, if an employee lodges a complaint against his supervisor, and within 90 days of lodging the complaint, is suspended, the employee will likely satisfy his initial burden of establishing a prima facie case of retaliation.
SB 497 further provides that, in addition to other remedies, all employers are liable for a civil penalty of $10,000 per employee per violation, to be awarded to the employee who was retaliated against. In assessing this penalty, the Labor Commissioner will consider the seriousness of the violation based on the evidence obtained during the course of the investigation.
With the passing of SB 497, California’s everchanging employment landscape shifts once again. Because SB 497 makes it easier for employees to allege that they have been retaliated against, employers should carefully review their policies and procedures on managing workplace complaints and disciplinary actions. Employers who need further guidance on this or any of California’s new employment laws should contact their favorite CDF attorney.
FAQs
SB 497 makes it easier for an employee to establish a claim of retaliation and satisfy the first step of the burden shifting analysis. Under the new law, the plaintiff employee will need only to show that the adverse employment action occurred within 90 days of protected conduct.
What is the new law on retaliation in California? ›
The new law amends California Labor Code sections 98.6, 1102.5, and 1197.5 to create a rebuttable presumption of retaliation if an employee experiences an adverse employment action within 90 days of engaging in any protected activity covered by the specified sections.
What is the 90 day retaliation law in California? ›
The Key Features of SB 497
If an employer takes adverse action (like discharge, discipline, demotion, or threat thereof) against an employee within 90 days of the employee exercising rights under specific Labor Code provisions, it is presumed to be retaliatory.
Are retaliation claims rare in California? ›
Retaliation claims are not rare in California.
What are the three elements of a retaliation claim? ›
Per federal case law and regulatory agency guidance, there are three essential elements in a claim of retaliation:
- Protected activity.
- Adverse action.
- Causal connection.
Common law retaliation is any action taken by a landlord against a tenant that is not codified as retaliatory under California statutory law.
Can I sue my employer for retaliation in California? ›
Employees, former employees, or job applicants who have suffered retaliation or discrimination may file a retaliation complaint. The Labor Commissioner's Office maintains a listing of California laws that specifically prohibits retaliation, discrimination, and pay inequity.
What is the burden of proof for retaliation? ›
Under the current law, a retaliation claim includes three stages of a shifting burden of proof: (1) the employee must establish a prima facie case of retaliation; (2) the employer must identify a legitimate, non-retaliatory reason for their act(s); and (3) the employee must prove that the employer's non-retaliatory ...
What is the average settlement for a retaliation lawsuit in California? ›
Between $20,000 and $40,000
Every person who gives or offers to give a bribe to any Member of the Legislature, any member of the legislative body of a city, county, city and county, school district, or other special district, or to another person for the member, or attempts by menace, deceit, suppression of truth, or any corrupt means, to ...
To establish a claim of unlawful retaliation, the employee must demonstrate a connection between their protected activity and the adverse action taken by the employer. In other words, the employee must show that the adverse action directly resulted from their engagement in the protected activity.
What is the average EEOC settlement amount? ›
What is the Average Settlement for a Discrimination or Retaliation Claim? Based on data from the Equal Employment Opportunity Commission (EEOC), the typical settlement amount for employment discrimination claims stands around $40,000.
What to do if your boss is retaliating against you? ›
You generally have the right to file a complaint in court or with a federal agency, file a Charge of Discrimination with the EEOC, participate in an employment discrimination investigation or lawsuit, engage in any protected equal employment opportunity (EEO) activity, or oppose harassment or discrimination without ...
What should I ask for in a retaliation settlement? ›
Employees who have experienced retaliation often ask for an award of "pain and suffering," which includes the negative emotions (including anger, embarrassment, frustration, and the like), reputational harm, and other negative consequences you've experienced as a result of the retaliation.
What is indirect retaliation? ›
Examples of indirect retaliation include isolating an employee from workplace activities, excluding them from important meetings, or providing them with less desirable assignments after they have engaged in a protected activity.
What is a prima facie claim of retaliation? ›
Under both the ADEA and Title VII, a plaintiff establishes a prima facie case of retaliation by showing that (1) the plaintiff engaged in protected activity; (2) the defendant knew of the protected activity; (3) thereafter, the defendant took an adverse action against the plaintiff; and (4) there was a causal ...
What are some examples of retaliation? ›
reprimand the employee or give a performance evaluation that is lower than it should be; transfer the employee to a less desirable position; engage in verbal or physical abuse; threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
What is prohibited retaliation? ›
Retaliation occurs when an employer (through a manager, supervisor, administrator or directly) fires an employee or takes any other type of adverse action against an employee for engaging in protected activity.
