California Law Changed To Presume Retaliation Against Employee Who Had Complained At Least 90 Days Before Being Fired

Effective January 1, 2024, California’s Equal Pay and Anti-Retaliation Act (SB-497) went into effect.  The new law changes California Labor Code Sections 98.6, 1102.5, and 1197.5 to create a rebuttable presumption of retaliation if an employer fires an employee within 90 days of the employee engaging in protected activity.

Under current law, to prove retaliation, employees must demonstrate:

• the employee engaged in protected activity;
• the employee was subject to an adverse employment action; and
• there was a causal connection between the protected activity and the adverse employment action.

The change in law adds the bolded portion to Labor Code Section 98.6(b)(1):

Any employee who is discharged, … because the employee engaged in any conduct delineated in this chapter, including the conduct described in … Chapter 5 (commencing with Section 1101) of Part 3 of Division 2 [including section 1102.5], … shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.  If an employer engages in any action prohibited by this section within 90 days of the protected activity specified in this section, there shall be a rebuttable presumption in favor of the employee’s claim.

The change in law means that employees fired within the ninety-day window are presumed to have experienced retaliation.  This eases the employee’s burden in proving up the causal connection element of their retaliation claim, and it will make it harder for employers to dispose of these retaliation claims at the early stages of litigation.

The change in law is just the latest in recent adjustments to the evidentiary requirements employees must satisfy when bringing a retaliation claim.

In 2022, the California Supreme Court clarified in Lawson v. PPG Architectural Finishes, Inc. that employees only have to show by a preponderance of the evidence that their protected activity was a contributing factor in the employer’s decision to fire, after which employers must show by clear and convincing evidence that they had legitimate, non-retaliatory reasons for the action.

For more, see California Anti-Retaliation Laws and California Whistleblower Law Is The Strongest In The Nation