Defending Claims of Employer Retaliation in San Diego


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California has witnessed a significant rise in the number of employer retaliation cases in the past few years. The exposure to San Diego employers is significant and it is important to tighten employment contracts, policy and procedure and employee manuals, as well as internal processes for responding to and documenting employee complaints.

California Courts and California laws heavily favor the employee in employment disputes here in San Diego and across the State. Plaintiff’s employment lawyers and even injury lawyers seeking to grow their business have identified an opportunity associated with employer retaliation cases. The legal burden of proof in the classic employer related employment cases such as wrongful termination,
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discrimination, and sexual harassment is quite high and rests with the employee. However, retaliation cases provide much more flexibility for the Court to side with an employee, and San Diego businesses must take prudent steps to prevent significant legal exposure to assertions of retaliation.

What Steps Should a San Diego Employer Consider to Reduce or Eliminate Retaliation Claims?

One of the keys to an employer’s strategy to reduce exposure to retaliation claims lies in the policies and procedures surrounding employee performance review and disciplinary procedures. It is important to legally separate issues of the quality of a worker’s performance and behavior from the protections against retaliation associated with internal and external complaints.

When a worker complains to an employer (or an outside agency) that a potential violation of California employment laws or the employer’s own employment policies has occurred, the employer is required by law to notify the employee that they will not suffer retaliation by the employer.

This can make an employee feel like they have immunity against job performance or disciplinary issues. Once an employer justifiably questions an employee’s performance or must undertake disciplinary action following a complaint against the employer, the employee perceives a connection between the events resulting in assertions of retaliation. This represents a significant risk for San Diego employers.

The Key to Avoiding and Resolving Potential Retaliation Disputes

One of the most important steps an employer can take lies in the response to a complaint or allegations of wrongdoing by an employee. It is important to fulfill the legal requirement of notification to the employee that you as an employer will not retaliate, yet in the same communication clearly establish the difference between retaliation and the genuine processes and procedures for measuring employee productivity and issuing discipline.

The tone of this communication is quite important. It should be in writing to ensure that no party can misconstrue the intention behind it. The response should be crafted by an experienced and seasoned employer focused employment law attorney. It should incorporate well established internal policies and procedures, and reference appropriate sections of the employee handbook.

A complaint by an employee should serve as an immediate red flag of the potential for a retaliation action. San Diego employers must take employee complaints seriously, and develop specific strategies designed to diffuse tensions and resolve disputes. It is not uncommon for an employee who is under-performing or facing disciplinary action up to and including termination to file a complaint against the employer in an attempt to intimidate them and establish a basis for a retaliation claim.

ABOUT THE AUTHOR: Daniel Watkins
Mr. Watkins is an experienced litigator and trial attorney with over 50 Jury and Bench trials to his credit in 25 years of practice. He has achieved substantial victories in well-publicized trials throughout California and Wisconsin.
Mr. Watkins has successfully tried and litigated cases in the areas of Healthcare Compliance, Commercial Litigation, Unfair Business Practices, Fraud, Breach of Contract, Discrimination, Sexual Harassment, Construction Defect, and Unfair Competition

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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