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Retaliation at work and at will employments

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

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Attorney answers 5


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.


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 and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney. Jonathan J. Delshad


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 only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.


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 intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.



Other than being a legally protected activity, what you report also have to be a benefit to the public? Does all legally protected activity not benefit public? Does it mean one can be terminated for reporting a legally protected activity and still does not have a wrongful termination claim?

Neil Pedersen

Neil Pedersen


No, not all unlawful conduct hurts the public at large for purposes of determining if you have a legitimate legal claim. For instance embezzlement is illegal, but if you were to report that your supervisor was taking company money for his own benefit, that would not be a reporting of illegal conduct that would be considered to affect the public. It is your use of the term "legally protected activity" that creates the problem here. We attorneys run into potential clients who characterize conduct incorrectly all the time. Generically, if you are correct that you were retaliated against for engaging in "legally protected conduct" then you have a case. We all simply question what you define as "legally protected conduct" because that is the key to the issue. Good luck.

David Andrew Mallen

David Andrew Mallen


Wow. Good questions. After staring at my toes and meditating on the answer, let me answer your question with a two yes-or-no questions. Did you complain about employer conduct that you reasonably believed to be unlawful? Can you point to a state or federal law or regulation that the employer's conduct violated? You need to be able to answer "yes" to both questions, preferably with the help of a lawyer. Without more facts, I cannot answer your question in a legal vacuum.

David Andrew Mallen

David Andrew Mallen


I agree with Mr. Pedersen.


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.

THIS IS A GENERAL ANSWER TO A GENERAL QUESTION AND SHOULD NOT BE RELIED UPON AS A FULL LEGAL ANALYSIS OF ANY FACTUAL MATTER. An attorney-client relationship is not established or offered solely as a result of this answer.

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