Retaliation at work and at will employments

Asked over 1 year ago - Long Beach, CA

If an employee was retaliated for reporting a protected activity, and the employer insist that the termination was on their at will policy, do you have to claim an at will employment exception as a defense? Or are there better response than this? Thanks

Attorney answers (5)

  1. Kristine S Karila

    Contributor Level 16


    Lawyers agree


    Answered . More facts are needed. An employer of an at-will employee can fire that person for any reason as long as it is not based on a protected class (age, race, gender, religion, medical condition, etc.) or for asserting his/her legal rights (example: overtime pay, leave under the family medical leave act, etc.) or because the employee was a whistleblower. Contact an employment law attorney. Most of us offer a free initial phone consultation.

  2. Jonathan Jacob Delshad


    Contributor Level 9


    Lawyers agree

    Answered . If the employee was in fact retaliated for reporting a protected activity, then the employer is in trouble. It is not a defense to claim the employee was an "at will" employee if in fact they were terminated for reporting a protected activity. All employees, at will or not, are protected by law from retaliation for engaging in protected activity.

    I agree that more facts are needed, you would want to speak to an employment law attorney asap. Consults are usually free.

    Mr. Delshad is licensed to practice law only in California. The information presented here is general in nature... more
  3. Neil Pedersen

    Contributor Level 20


    Lawyers agree

    Answered . I agree with my colleagues. If the retaliation was because of your engaging in protected activity such conduct is unlawful regardless of whether or not the employee is an at will employee. My concern is with the form of retaliation you have experienced and whether or not the activity is truly legally protected. Absent facts related to those two issues, I must suggest you discuss the details with a good employment lawyer at your earliest convenience.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more
  4. David Andrew Mallen

    Contributor Level 14


    Lawyers agree

    Answered . Define "protected activity".

    In order for complaints to have legal "protection", whatever you complain about must invoke an important legal rule or regulation that is enacted for the benefit of the general public.

    Also, ask yourself how you would prove your complaint. Any writing? Any witnesses?

    Finally, can you show a causal link between your complaint and your termination -- by words or by close proximity in time?

    A lawyer can walk you through this process. It is important.

    Best regards,

    David A. Mallen

    David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not... more
  5. Thomas Carson Walker


    Contributor Level 7


    Lawyers agree

    Answered . Well, I do not disagree with what's been said...but there seems to be some mixing of apples and oranges in your question. If you were fired for unlawful retaliation, you have a claim. If you were fired for an entirely different reason, you do not have a claim that sounds like retaliation. Engaging in a protected activity does not mean you acquire a bullet-proof vest that makes it impossible for an employer to terminate your employment, but it may suggest the adverse employment action might have been connected to the protected activity..which is the basis of most claims. I think an experienced employment atorney can sort it out for you quickly.


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