Quickly will probably be simpler for California staff to ascertain a prima facie declare of retaliation in violation of California regulation. On October 8, 2023, Governor Gavin Newsom signed Senate Invoice No. 497 into regulation. Additionally known as the Equal Pay and Anti-Retaliation Safety Act, the laws amends California Labor Code Sections 98.6, 1102.5 and 1197.5 and can create a presumption of retaliation when an employer takes an adversarial employment motion in opposition to an worker inside 90 days of the worker participating in conduct protected below any of the required Labor Code sections.
Below California regulation, a prima facie declare of retaliation requires a displaying that:
- the worker engaged in protected conduct,
- the employer took an adversarial employment motion in opposition to the worker and
- the circumstances point out a causal connection between the protected conduct and the adversarial employment motion.
Courts apply the next three-step burden shifting evaluation to retaliation claims:
- the plaintiff worker first has the burden of creating a prima facie declare,
- if the worker does so, the employer might rebut the presumption by establishing a lawful, non-retaliatory purpose for the adversarial employment motion, and
- to prevail on his or her declare, the worker should then set up that the non-retaliatory purpose offered was pretextual (or not real).
SB 497 makes it simpler for an worker to ascertain a declare of retaliation and fulfill step one of the burden shifting evaluation. Below the brand new regulation, the plaintiff worker will want solely to point out that the adversarial employment motion occurred inside 90 days of protected conduct. It’s not clear to what diploma SB 497 will change California regulation in follow, on condition that some courts already discover shut proximity in timing between protected conduct and an adversarial employment motion alone adequate to make out a prima facie declare. By making a bright-line 90-day rule, nonetheless, SB 497 offers readability as to the temporal connection between protected conduct and an adversarial employment motion that’s alone adequate for a prima facie declare.
SB 497 additionally offers that an employer is accountable for a civil penalty not exceeding $10,000 per worker for every violation of the required Labor Code sections that prohibit retaliation. The civil penalty shall be awarded to the worker who suffered the violation. The civil penalty is along with different cures an worker might recuperate.
The enactment of SB 497 makes it much more vital that employers, at any time when acceptable, self-discipline staff progressively and doc the explanations for worker self-discipline. Clear documentation of each the actual fact of worker self-discipline and the explanations for worker self-discipline improve an employer’s capacity to defend in opposition to claims of retaliation and to reveal that challenged adversarial employment actions have been taken for professional causes. Employers additionally should preserve and implement insurance policies that present for the target investigation of worker inner complaints and prohibit retaliatory motion.