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- In this video, I'm gonna discuss two things. Number one, how you can prove that you've been retaliated against if you still have your job and you want it to stop, and two, how a retaliation lawyer like me proves unlawful retaliation in court if you've been fired and you have a good case. So get on board, ladies and gentlemen. This is gonna be a good one. (upbeat music) Before we can do either of those things, we need to get two preliminary issues out of the way. Number one, I will only be discussing California law because that is where I have a license to practice law. However, this video will help anyone who watches it, no matter where you are, because most of the tips I give in the video do not depend on the law. However, this video is not legal advice. You're watching a video. If you need legal advice, call a lawyer in your jurisdiction so he or she can hear your story and then give you specific advice. If you are in California and your situation has gotten really bad, you can call my office for a free consultation. Two, you need to have a solid idea what the legal definition of retaliation is before we start discussing strategies because there's a significant difference between things that are unfair and things that are unlawful. Generally, California's retaliation law, and many other states' for that matter, prohibit employers from taking an adverse action against an employee because he or she engaged in a protected activity. Normally, people think of workplace retaliation as your boss or your coworker harming you because he or she believes that you somehow harmed him, but legally, that isn't good enough. For the retaliation to be unlawful, your boss or coworker must be harming you because you did something that is protected by law. So what are the activities that are protected? Here is a good starting list. Number one, you refused to violate a law or you complained that somebody else was violating a law. Two, you opposed unlawful harassment or discrimination. Three, you complained about an unsafe work environment. Four, you complained about not getting paid proper overtime or minimum wages. Five, you complained about patient safety if you're a healthcare worker and you work at a hospital, or six, you requested a reasonable accommodation for a disability. There are a lot more reasons, and if you wanna see all of them, visit my retaliation page on my website. That page dives deep into retaliation law and answers far more questions than I can in this short video. Okay, now we can get to the good stuff. Okay, if you're still employed, how do you go about proving retaliation? My simple response to this is you don't. Look, if you're still employed and you're researching how to prove retaliation online, you probably have the following objectives. You'd probably like to stop the retaliation, right? You'd probably wanna save your job, and importantly, you probably would like to lay a legal foundation that a lawyer like me can use down the road if legal action becomes necessary. None of those three things require you to prove retaliation to HR or to management. In fact, you don't need to prove anything in order to accomplish those three things. Going to great lengths to prove something to an executive or to HR will just probably paint a big old target on your back. It'll disrupt the flow of work. It will upset management and irrevocably destroy that key relationship with your supervisor. I am here to suggest a better way. Simply put the company on notice with a respectful and polite complaint. What do I mean by that? Submit a polite and helpful complaint in an email to the appropriate authority at your company. This complaint should be non-threatening, concise, and it should identify that you feel you are being treated poorly because you, and that's where you would insert the protected activity. This complaint should not use conclusory legal terms, shouldn't jump to crazy conclusions, and it should definitely not be done verbally. If you want to know more about how to complain at work but prevent retaliation from happening or continuing, go watch my video on that exact subject, where I lay out the seven key elements to successfully making a complaint like this. Making a complaint like this will do a few wonderful things. Number one, it'll probably stop the retaliation from continuing. Most employers, especially if they have HR, are smart enough to know that when they might be opening the legal liability door, they don't like that and they will probably instruct the bad guy or girl to knock it off, or they will separate the two of you, both of which are good things. Number two, a good written complaint will dramatically help your lawyer prove your case if it comes to that. I'll talk more about this in a second, and three, while a complaint in and of itself will not save your job, it will demonstrate to the company that you're willing to fight for yourself. Lawyers often say there is value in the fight. When you stand up for yourself, you educate the opposing party that there are consequences if they do not act appropriately. If they fire you now after you've complained in writing, they might face legal consequences. However, don't let this go to your head. If you complain inappropriately, you won't save your job. You'll destroy it. So go watch my complaint video because it will absolutely help you make a proper complaint. I'll leave a link below in the description. All right, that's great, Branigan, but how can I prevent retaliation from happening to me in the first place? Before we get to the lawsuit stuff, I want to take a second and point out something that's very important. Generally, you can prevent retaliation from ever happening to you by providing your employer with undeniable value. Let's be honest, right? A lot of people who complain at work are bad employees. They like to point the finger at somebody else in order to deflect their own poor job performance. On the other hand, you rarely hear about really valuable employees being retaliated against. Why is that? Well, it's no secret. Companies will protect valuable people, so one way you can prevent retaliation from ever happening in the first place is to become one of those valuable employees. On the other hand, if you are being retaliated against by one of those valuable employees, you're definitely gonna need a lawyer to help fight for your situation, so don't be afraid to call one if you feel like you've got no other option. If the company fires you in retaliation for engaging in a protected activity and you find a good lawyer to take your case, how does the lawyer go about proving that you were retaliated against? That's what the rest of this video is all about. First, we lawyers look at what we call the sequence of events. As you recall, unlawful retaliation requires that the company take an adverse action against you because you engaged in a protected activity. Therefore, it's very important that your lawyer first establish that you made the complaint, you submitted the report or you refused to break the law, and then the company retaliated against you. Far too often, my office gets calls from people who say, "The company fired me because I complained about an unsafe work environment, but during the termination meeting, they said that it was because I was a poor job performer, but that's a lie," only to find out months later that actually the company had written up the employee three times for terrible job performance before he ever submitted his complaint. While it's not impossible, facts like that make it very hard to convince a jury that the employee was retaliated against because of his complaint. Second, we look at your job performance and the discipline history of the employer. It's absolutely critical that we establish your baseline of job performance. Moreover, we wanna know how your employer has treated you and other employees in the past. Specifically what I mean is that we need to be able to prove that you were a satisfactory employee before you engaged in the protected activity. Had you ever been written up before? How long had you worked at that company before you submitted your complaint? We need to know these things so if the company lies and says you were a bad employee, we can show the jury that their claim is just not true, that the real reason why you were fired is because you made a protected complaint or you engaged in a protected activity. Additionally, we wanna know how the company has treated other employees. If other employees have complained about the exact same thing that you have but they didn't get fired, it's gonna make it more difficult to prove your case, but if the employer claims that you were fired for being late one day and they haven't ever fired any other employees for being late, then it's more likely that the real reason for your termination is that you made a protected complaint. Well, how do we go about proving your job performance and the discipline history? Well, first we look at your personnel file, your performance documents. We'll look at emails and text messages. Second, we get people to testify under oath that you are a good employee. Third, we gather all the information and put it into a comprehensive timeline of events that we can explain your story in order to the jury. Third, we look for liars under oath. In litigation, we have various discovery tools that we use to collect important information. This includes interrogatories, requests for admission and depositions. These tools allow us to collect information under oath, and that means if you or the company lies when responding to one of these critical questions, the liar has committed perjury. If you commit perjury, the jury will know that you are a liar, and guess what happens when somebody lies to a jury? They lose. Let's say the company manager who fired you claims under oath that the sole reason why they fired you was because you didn't submit a report on time. You were supposed to submit it on Friday, but you didn't get around to it until Monday, but during discovery, we prove that the company had never fired anyone for submitting a late report. Additionally, it turns out we subpoenaed the manager's text messages and we find that he admits to a friend in a text that he didn't fire you for submitting the report. While it's true that you didn't get the report in on time, if we can show to the jury that the manager has lied to them about why you were fired, it will help prove that the real reason for your termination was your protected complaint. In the legal world, we call this a pretext. Essentially, the lie is a reason for firing someone or the real reason is the protected activity. I made an entire video about pretext and I'll leave a link below if you want to know more about how lawyers use pretext to win cases. Finally, we package the sequence of events. We package your job performance, the company's discipline history and all the evidence of pretext and we present that to a jury during trial. The jury's gonna decide on a preponderance of the evidence burden whether or not your termination was substantially motivated by your protected activity. Under the preponderance of the evidence standard, the burden of proof is met if you prove to the jury that there is a greater than 50% chance that your retaliation claim is true. This isn't criminal court, when you have to prove beyond a reasonable doubt. In civil cases like retaliation, it's a lower burden of proof. I hope you found this video to be helpful. If you are in California and you think you have a case, you can contact my office for a free consultation. I'll leave my information on the screen in case you want to get ahold of me. Finally, this video is just the tip of the iceberg when it comes to proving retaliation. My webpage on retaliation is far more comprehensive, so if I didn't answer a specific question that you have or you want to learn more about retaliation, I highly recommend going there to get it answered. The link is in the description. That is all I have for you. I hope you have a fantastic day. Take care. (upbeat music)