EASIER FOR CA EMPLOYEES TO PROVE EMPLOYER RETALIATION

EASIER FOR CA EMPLOYEES TO PROVE EMPLOYER RETALIATION

California’s Equal Pay and Anti-Retaliation Protection Act is effective January 1, 2024 and amends certain provisions of the California Labor Code to create a rebuttable presumption of retaliation by the employer in favor of the employee, if an employee experiences an “adverse employment action” within 90 days of engaging in “protected activity.”  It provides for a prevailing employee to receive civil penalties of not more than $10,000 per employee per violation.  It can add up, especially for any ‘retaliatory’ action that perpetuates (e.g. retaliating by not giving employee a raise when everyone else got one or an employee complaining that she is not paid comparable to male employees, which results in ongoing compensation payment violation each pay period).

These include, for instance, an employee claiming retaliation for the employee talking about wages (e.g. equal pay inquiries, etc.), the employee exercising political and civic rights, participating in other employee Private Attorneys General Act (“PAGA”) actions, whistleblowing, participating in a proceeding relating to employee rights enforced by the Labor Commissioner.

Previously, retaliations claims analysis required the employee to establish retaliation by competent evidence showing:

  •      •The employee engaged in protected activity;
  •      •The employee experienced an adverse employment action

    •           •(e.g., separation, demotion, suspension, or almost anything that the employee claims is a negative effect on the employee’s employment experience, …); and

  •      •Something that connects the adverse action to the employee’s protective activity.

 

Once the employee established a prima facie case, the employer would rebut that presumption by identifying a legitimate, non-retaliatory reason for the adverse employment action.  Once that was done, then the employee had to establish that the employer’s non-retaliatory reason was pretextual in nature/false.

That’s all out the window.  Now, if the employee experiences an adverse employment action within 90 days of the employee engaging in protected activity, there is a rebuttable presumption the employer retaliated against an employee, eliminating the 2nd step above.  Timing is the issue here.

Note that the employer may still articulate a legitimate, non-retaliatory reason for the decision and the new law does not relieve the employee of the obligation to ultimately offer evidence to establish that the employer’s non-retaliatory reason was pretextual.

Employers are advised to document all employment matters in order to meet their burden.  Employers with Questions on employment matters may contact Epps & Coulson, LLP.  We are here to help you plan and grow and protect your business.  Please feel free to contact Dawn at: dcoulson@eppscoulson.com.

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is likely considered advertising.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.  Epps & Coulson, LLP attorneys and affiliated counsel admitted to practice in New York, California, Colorado, Connecticut, District of Columbia, Massachusetts, New Jersey, Hawaii, Oregon, Texas, European Union, France, England and Wales and Sweden.

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