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What evidence can one use to prove retaliation in the workplace?

Employers in California run their businesses in different ways. Some offer more benefits than others, some provide additional perks, have different policies for working at home or hours of work, workplace attire, pay and other aspects of the workplace. They also set the procedures and requirements for promotions and discipline. Employers do have significant freedom to do what they believe is best for the company, but there are certain laws that all employers must follow no matter the type of business.

One of these laws that all employers must follow is that they are not allowed to retaliate against employees who report violations of the law, cooperate in investigations, refuse to participate in illegal activity and participate in other protected activity. However, this does not stop all employers form refraining from whistleblower retaliation. Proving retaliation is not always the easiest task though. Most employers will not overtly make it clear that they are retaliating against an employee. So, it is important for employees to pay attention to certain actions taken by the employee.

One is the timing between a negative action taken against the employee and the participation in a protected activity. Another is that the employee was punished for violating a policy that is normally not enforced or another employee who did not participate in a protected activity was not punished as harshly for breaking the same policy. Also, the employee should try to gather evidence to refute the basis that the employer gave for taking a particular action against the employee, such as a demotion or not getting a promotion they were in line to get.

Many employers break the law or regulations in California. Employees are encouraged to report these violations and to help ensure that they are not retaliated against for doing so, there are protections for whistleblowers. If employers retaliate against employees, they may be required to compensate the employee for their actions. These are very fact-specific matters though and experienced attorneys may be able to guide one through it.

Source: www.eeoc.gov, "Questions and Answers: Enforcement Guidance on Retaliation and Related Issues" accessed on May 2, 2018

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