An employee raised a complaint. Later, you disciplined or let that person go for reasons you believe were sound. Now a letter says the real reason was payback.
Retaliation claims are among the hardest to defend in California, because timing alone can look like proof. Karin Backstrom defends San Diego employers against retaliation and whistleblower claims and helps them make sound decisions before a claim arrives.
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Retaliation means taking adverse action against an employee because they did something the law protects, such as reporting harassment or a wage problem. The employee does not have to prove the original complaint was right. An employee can lose the underlying complaint and still win on retaliation.
That is why these claims show up so often next to other charges. A fired employee who once complained about pay may bring both a wage claim and a retaliation claim, and a jury tends to understand a short gap between a complaint and a firing.
Retaliation defense is a regular part of Backstrom Labor Law’s employment litigation defense practice. Because so many of these claims follow a termination, Karin often defends them alongside her work as a wrongful termination defense attorney in San Diego.
California protects a wide range of employee conduct. These are the activities that most often lead to claims.
Adverse action is broader than firing. Under California case law, a series of smaller actions, such as cut hours, worse assignments, or sudden write-ups, can add up to retaliation when viewed together.
Different laws use different tests. The standard often decides how much proof you need.
| Type of claim | What decides the case |
|---|---|
| Whistleblower claim (Labor Code 1102.5) | The employee shows the protected activity was a contributing factor. You must then prove by clear and convincing evidence that you would have made the same decision for legitimate, independent reasons. |
| FEHA retaliation (Government Code 12940(h)) | The employee must show the protected activity was a substantial motivating reason for the decision. |
| Wage complaint retaliation (Labor Code 98.6) | Since 2024, adverse action within 90 days of the protected activity is presumed retaliatory. You can rebut the presumption with evidence. |
The California Supreme Court confirmed the whistleblower standard in 2022. Clear and convincing evidence is a high bar, and documents created before the complaint carry the most weight. Labor Code 98.6 and 1102.5 also allow a civil penalty of up to $10,000 per employee for each violation.
For practical habits that keep these standards on your side, read these steps to prevent retaliation claims.
Karin reviews the timeline, the documents, and the decision makers, then tells you how the claim looks under California's standards.
This is the moment many HR directors call. The employee has real performance problems, and they also just filed a complaint. You can still act, but answer these questions first.
Documented performance problems before the complaint carry far more weight than notes written after it.
Would another employee with the same record receive the same discipline?
If a supervisor who knew about the complaint shaped the decision, that input can create risk even when the final decision maker did not know.
Action within 90 days of a wage or pay complaint triggers the presumption described above.
An impartial review of the employee’s complaint shows you took it seriously and separates it from the performance issue.
Our guide on how to terminate an employee in California covers the documents to have in place.
The safest time to call counsel is before the termination meeting, not after it.
A retaliation claim can reach your business through several channels, often more than one at once.
Employees generally have one year to file a retaliation complaint with the Labor Commissioner. An investigator interviews the employee, the employer, and witnesses, then issues a determination. If the finding goes against you, you have 30 days to comply or the agency may sue. Karin handles these alongside her Labor Commissioner claim work.
FEHA retaliation claims start with the CRD, and employees generally have three years to file. The process mirrors any other CRD case, so a DFEH complaint defense attorney in San Diego can handle the response, mediation, and investigation.
Many cases start with a letter from the employee's lawyer. How you answer it sets the tone for settlement talks, so read this guide on responding to an employee's demand letter before you reply.
The record you protect now becomes your defense later.
Karin reconstructs the timeline, tests your documentation, and shows you where your defense is strong and where it needs work.
Retaliation cases are won or lost on the timeline. Karin builds that timeline herself.
She maps every complaint, warning, and decision in date order.
She speaks with the people involved under attorney-client privilege.
She checks how similar employees were treated.
She answers Labor Commissioner and CRD investigations.
She defends lawsuits in state and federal court, including San Diego Superior Court.
She trains managers and offers ongoing HR counsel for employers so the next decision holds up.
Retaliation claims feel personal for owners and managers. You need someone calm who sees the whole picture.
Karin can review a planned termination before it happens and defend it later if needed. One attorney knows the full story.
Karin reviews your documents herself. Your case does not depend on a junior associate's summary.
Karin started at Littler Mendelson and Sheppard Mullin and has more than 26 years of employer-side practice. Learn more about Karin Backstrom.
Some cases should settle and some should be defended. Karin gives you a straight recommendation from her retaliation defense office in Old Town San Diego, and the decision stays yours.
Yes, if you have legitimate, documented reasons that have nothing to do with the complaint. Timing and consistency matter a great deal. Talk to counsel before you act.
Most defenses rest on three points. The decision maker did not know about the protected activity, the decision had a legitimate reason documented before the complaint, or you would have made the same decision anyway. Consistent treatment of similar employees supports each one.
Since 2024, Labor Code 98.6 and the Equal Pay Act presume retaliation when an employer takes adverse action within 90 days of certain protected activity, such as a wage complaint. The presumption is rebuttable, which means solid evidence of a legitimate reason can overcome it.
It depends on the law. Employees generally have one year to file with the Labor Commissioner and three years to file a FEHA complaint with the CRD. The Labor Commissioner explains how retaliation complaints are filed and investigated.
The complaint can still be protected. If the employee reasonably believed something unlawful was happening, the law protects the act of reporting it.
Under FEHA, the California Supreme Court has held that individual supervisors are not personally liable for retaliation. Other statutes can raise different questions, so get advice on your specific facts.
Yes. California courts look at the full picture. Several smaller actions together, such as reduced hours, exclusion from meetings, and a sudden poor review, can count as adverse action.
Bring the claim and your records. Karin will give you a candid read of the risk and a practical plan for what comes next.
