Whistleblower protection part II
What is adverse action and does timing prove a causal connection?
Jennifer Woo Burns
Jasmin B. Bhandari
To establish a case for retaliation under Labor Code Section 1102.5, employees must show that they engaged in protected activity, the employer subjected them to adverse employment action(s), and that there is a causal link between the protected activity and the adverse action. So what is an adverse employment action?
An adverse action under 1102.5 is determined under the same standard as for violations of the Fair Employment and Housing Act (FEHA), which prevents discrimination, harassment and retaliation on the basis of various protected characteristics—whether the action alters or materially affects the terms and conditions of plaintiff’s employment. Adverse actions can include (but are not limited to): termination, demotion, suspension or other disciplinary action, reduction in pay, change in work assignments, change in schedule, exclusion from aspects of the job, failure to give equal consideration in making employment decisions, or otherwise denying any employment benefit to an individual.
The timing of an adverse employment action can provide strong evidence of retaliation, especially when the adverse action occurs soon after the employee’s protected activity. Thus, even when employers feel negative employment actions are justified, they should work with counsel to assess the risks of the appearance of retaliation and carefully document support for the adverse employment action when the employee is a recent whistleblower.