Defending California employers against retaliation claims.

What "retaliation" actually requires

Most California retaliation claims share the same three-element structure:

(1) Protected activity. The employee did something the law protects — filed a complaint, participated in an investigation, requested accommodation, took protected leave, reported a violation, opposed practices the employee reasonably believed to be unlawful.

(2) Adverse action. Termination, demotion, pay cut, schedule change, transfer, exclusion from meetings, hostile work environment — anything material enough to deter a reasonable employee from engaging in the protected activity.

(3) Causal connection. The adverse action happened because of the protected activity. Temporal proximity (adverse action shortly after the protected activity) is often enough to establish causation at the pleading stage.

The protected-activity element is where most retaliation claims succeed or fail at the defense stage. Many claims pleaded as retaliation rest on activity that doesn't legally qualify as protected — generic complaints about a manager, dissatisfaction with workplace conditions, vague references to "reporting concerns." The defense often turns on whether the activity actually fits a protected category.

The retaliation theories we defend most often

FEHA retaliation

California Government Code §12940(h) prohibits retaliation for opposing FEHA-prohibited practices or participating in FEHA-related proceedings. Broader than federal Title VII retaliation in some respects — California recognizes retaliation for opposing practices the employee reasonably believed to be unlawful even if the underlying conduct wasn't actually unlawful.

Cal Lab Code §1102.5 whistleblower retaliation

Among the broadest whistleblower-retaliation statutes in the country. Protects employees who report violations of state or federal statute, rule, or regulation, internally or externally. The protected-activity threshold is low; the causation analysis is where defense work concentrates.

Cal Lab Code §6310 / §6399 occupational safety

Retaliation for reporting unsafe working conditions or refusing to work in unsafe conditions. Distinct from §1102.5 in that it doesn't require the underlying complaint to be about a statutory violation — health and safety concerns suffice.

Leave-protection retaliation

FMLA, CFRA, paid sick leave, pregnancy-disability leave, military leave — each comes with anti-retaliation provisions. Retaliation for taking protected leave (or for requesting it) is among the most common employer pitfalls because the timing creates a presumption.

Wage-claim retaliation

Cal Lab Code §98.6 prohibits retaliation for filing a wage claim with the DLSE or for testifying in a wage-and-hour matter. Often combined with the underlying wage claim.

Defense strategy

Test the protected-activity element

Many retaliation claims rest on activity that doesn't qualify as protected. Generic complaints, undocumented "concerns," complaints about lawful but unpopular decisions — none of these satisfy the protected-activity element. Demurrer is often viable when the pleading doesn't identify specific protected activity.

Develop the legitimate-basis narrative

If protected activity is established, the defense pivots to the legitimate, non-retaliatory basis for the adverse action. Pre-existing performance issues, documented misconduct, business-driven restructuring — anything that supports a non-retaliatory motivation.

Test the temporal-proximity argument

Plaintiffs often rely on temporal proximity (adverse action shortly after protected activity) to establish causation. If the adverse-action decision predates the protected activity, or if the gap between activity and action is long enough to break the inference, the causation element weakens.

Defense at summary judgment

Retaliation defense often peaks at summary judgment. If the employer can show (a) legitimate non-retaliatory basis, (b) the basis predates the protected activity or is unconnected to it, and (c) the plaintiff can't produce evidence of pretext, summary judgment is viable.