California Employment Law: "Creative" Retaliation Against Employees

Most employers are well aware that retaliation is illegal and may lead to significant civil liability. Thus, the ways that employer retaliated against employee who exercise their rights or complain about unlawful conduct at workplace becomes more and more subtle.

One creative way to retaliated that employers like to use is taking an employee who performs his job very well, and reassigning him to a position that they know he is not qualified for and will be unable to perform well. Then, with performance issues come the right-ups, counseling, disciplinary actions such as suspension and demotion and eventually - termination. This is one effective way to mask wrongful retaliatory termination behind performance issues.

To prove unlawful retaliation and wrongful termination under the above circumstances, it is important to show at the minimum that (1) the employee's reassignment to a new position was unwarranted and unfounded; (2) the employer had a motive to retaliate against the employee; and that (3) the timing of retaliatory reassignment to a position that the employee is incapable of performing was in close proximity to the employee's actions that angered the employer and lead to the desire to retaliate.

Arkady Itkin
San Francisco Employment Lawyer