Retaliation typically occurs when employees report to a supervisor something their employer did illegally. See Labor Code section 1102.5; Cal. Gov’t Code 12940 et seq.; CACI Jury Instructions 4603 and 2505. The following situations could be examples of retaliation.
An employee could mention to her supervisor that she is unable to take her meal periods because she is the only person on duty during certain shifts. She explains to her supervisor that she has not been getting paid for working during her meal periods. Later, her supervisor issues her a negative performance evaluation that she does not deserve. The comments in the review are verifiably incorrect. The performance review can determine whether or not she is eligible for a raise or a bonus or continued employment. This employee's supervisor could have retaliated against her with the poor performance evaluation because the employee reported that the employer failed to provide her with meal periods or pay her for the work she performed during those periods.
An employee informs her supervisor that the supervisor is giving her male coworker in her same position better, more substantive assignments. Good assignments can lead to a better reputation, prestige, and opportunities for advancement in the company and in her career. The employee’s performance remains excellent. However, within a few months of the employee’s discussion with her supervisor, the supervisor fires the employee for no apparent reason. The employer could have retaliated against the employee for her report of gender discrimination-- that the supervisor treated her less favorably than her male counterpart.
An employee reports illegal activity by the employer such as fraudulent loans that the employer is originating. These loans or paperwork might contain misrepresentations by the parties involved in the loan, such as the borrower lying about his income. This employee might tell a supervisor that this is occurring. However, it appears that nothing changes about the company's practices, and they continue to allow the same types of loans. This employee might report the employer’s fraudulent loans to the SEC or another government agency. Shortly after the employer discovers that the employee reported it to outside authorities, the employer fires the employee. Whether the loans are actually fraudulent or not does not matter if the employee had a reasonable belief that they were.
Unfortunately, these are common examples of how employers punish employees who try to do the right thing or obtain rights and benefits to which they are entitled under the law.