What is Protected Activity? How Does it Relate to Retaliation?

Retaliation is one of the most common types of employment law violations in the Bay Area. In most cases, to claim retaliation, one needs to engage in some form of “protected activity” and the employer needs to take an adverse action in response. Types of adverse actions include, but are not limited to: termination, demotion, suspension, negative write ups, a job transfer, being taken off the work schedule, reductions in pay or benefits, public ridicule, and ostracization.

So, what is protected activity? How does it relate to retaliation? There are generally four types of protected activity:

1. Reporting something you reasonably believe to be illegal,
2. Refusing to do something you reasonably believe to be illegal,
3. Participating in a protected process, and
4. Placing an employer on notice of a disability and or medical condition.

EXAMPLE 1

Jennifer works for a veterinarian in Montclair, California. She sees one of the veterinarian’s aides being very rough with some of the animals. She reports the employee’s actions to her supervisor. Her supervisor responds, “My cousin has been working here longer than you. He would never do what you said.” The supervisor then suspends Jennifer for making a “false report”, puts her on a performance improvement plan (PIP), fails her on all PIP directives, and terminates her 6 weeks later. Jennifer may have a strong case of retaliation based on reporting the violence against animals, the timing of the adverse actions taken against her, and the clear statement of bias towards the employee she reported about. Critically, it does not matter whether the vet’s aide was actually doing something illegal, Jennifer need only have a reasonable belief that the aide was violating a law, rule, regulation or ordinance by being rough with animals.

EXAMPLE 2

Javier works for a roofing company in Albany, California. The boss tells him to report that he only worked 8 hours each day of the week. Really, Javier worked closer to 10 hours per day. Javier knows he’s entitled to overtime pay for each day he worked more than 8 hours. He refuses to falsify his time records. Javier is not called to work the next day. He e-mails human resources and tells them what happened. He gets fired the following Monday morning. Javier has an extremely strong case of retaliation. He refused to do something illegal, and he reported something illegal. The timing of the termination/adverse action is extremely suspect.

EXAMPLE 3

Marie works for a restaurant in Oakland, California. She gets called for jury duty. She tells her boss she’s been called. He reacts negatively and says, “It’s a waste of time. And, we’re super busy, look at all these DoorDash orders!” He shakes his head. Marie reports as required and participates in the jury selection process. She’s called to serve as a juror in a sexual harassment case in Alameda Superior Court. Boss fires Marie upon her return. Marie has a claim of retaliation for participating in the judicial process.

At her next job, Marie tries to organize a union to bring more fairness to the workplace. The boss fires her the week after she holds a meeting about the benefits of unionizing. Marie has another case of retaliation for participating in another protected process.

EXAMPLE 4

Dylan works for a law office in San Leandro, California. He gets in a car accident which causes a chronic lower back injury. The doctor tells him he needs to take frequent breaks to move around and stretch. He advises his boss and human resources by e-mail to put everyone on notice of medical condition. He has just engaged in protected activity.

His boss is initially supportive. After a few weeks, boss starts making comments about how the breaks are disturbing the workflow. Boss says that walking and stretching around the cubicles is distracting and causing others to loose focus. Dylan is terminated 2 months later. The stated reason is that he’s “not productive enough” and does not “appear to be dedicated to the job”. Dylan has a case of retaliation, disability discrimination, failure to accommodate a disability, and failure to engage in a good faith interactive process about a disability.

If you have questions about protected activity, retaliation, wrongful termination, or any other questionable employment law practices, call Spencer Young Law in Oakland, California. We’re here to listen and help.