I have often said to clients that retaliation claims in California are the easiest claims to allege and the hardest claims to defend. Regardless of the statute, a retaliation claim is essentially three things:
- Employee engages in a protected activity.
- Employee suffers an adverse action.
- There is a causal connection between the protected activity and the adverse action (or put another way, but for the protected activity, the adverse action would not have occurred).
In the past, attorneys relied on case law to determine if the employee met the initial burden of showing the causal connection. With the passage of SB 497 (aka the Equal Pay and Anti-Retaliation Protection Act), as of January 1, 2024, there is a rebuttable presumption of a causal connection if there is an adverse action within 90 days of any protected activity under California Labor Code Sections 98.6, 1102.5 and 1197.5. Yes, the employer can put forth evidence to rebut it, but the burden is on the employer to show a legitimate business reason that is unrelated to the protected activity. And an employer who fails to do so is also on the hook for an additional $10,000 civil penalty.
How does an employer rebut the presumption? How can you prove that the adverse action, whether it be termination, demotion, transfer, or something less (like inconsistent enforcement of policies), is unrelated to some sort of protected activity (such as making a complaint about some workplace issue)? The answer is simple: Documentation. That is why my prior post on how to prepare good documentation and “tie it with a bow” is still super relevant today, and worth another read. With good contemporaneous documentation, the employer can prove that the issue was addressed before the protected activity and not just after. Without contemporaneous documentation, rebutting the presumption is much more challenging.
Be prepared for more retaliation claims in 2024, unless, of course, you revisit how to properly document performance issues and policy violations with your management team, and hold them accountable if they fail to do so.