Retaliation Claims Just Got Scarier

Halloween season is a good time for spooky stories, so let's talk about a subject that strikes fear in the hearts of employers everywhere: retaliation claims.

Employers currently cannot retaliate against employees who exercise their rights under three California Labor Code provisions: Section 98.6 (engaging in lawful but potentially controversial conduct outside of work, making a claim to the Labor Commissioner, participating in a PAGA claim, and otherwise complaining about wages), Section 1102.5 (engaging in whistleblower activity), and Section 1197.5 (enforcing the Equal Pay Act).

Senate Bill 497 ups the ante for employers who discriminate or take other adverse action against an employee based on the above activities. Effective January 1, 2024, employers will be presumed to have engaged in unlawful retaliation if they take such action within 90 days of the protected activity. The employer may rebut the presumption only by proving the legitimate,