RETALIATION DEMAND LETTER

California Whistleblower Protection and Anti-Retaliation Claims

[ATTORNEY/FIRM LETTERHEAD]

[Firm Name]
[Address Line 1]
[City, California ZIP]
Tel: [Phone Number]
Fax: [Fax Number]
[Attorney Email]
[State Bar of California Number]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA EMAIL TO: [recipient_email]

[Date]

[Employer Contact Name]
[Title]
[Company Legal Name]
[Company Address]
[City, State ZIP]

Copy to:
[General Counsel]
[EPLI Carrier, if known]

Re: Unlawful Retaliation Against [Client Full Name]
California Civil Rights Department Complaint No.: [XXXXX] (if applicable)
EEOC Charge No.: [XXX-XXXX-XXXXX] (if applicable)
CONFIDENTIAL SETTLEMENT COMMUNICATION PURSUANT TO CAL. EVID. CODE SECTION 1152

Dear [Mr./Ms./Mx. Last Name]:

This firm represents [Client Full Name] ("our client") in connection with claims of unlawful retaliation against [Company Legal Name] ("[Company Short Name]" or "the Company"). Please direct all future communications regarding this matter to our office.

Our client engaged in legally protected activity by [briefly describe protected activity], and [Company Short Name] retaliated by [briefly describe adverse action]. This retaliation violates California law and exposes the Company to substantial liability for compensatory damages, punitive damages, statutory penalties, and attorney's fees.

We write to demand immediate resolution of this matter and to advise that we are prepared to file suit if a satisfactory response is not received.

I. CALIFORNIA-SPECIFIC LEGAL FRAMEWORK

A. California Whistleblower Protection Act - Labor Code Section 1102.5

California provides the nation's strongest whistleblower protections under Labor Code Section 1102.5.

Key Provisions:

Under Cal. Lab. Code Section 1102.5(b), an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, if the employee has reasonable cause to believe that the information discloses:
- A violation of state or federal statute
- A violation of or noncompliance with a local, state, or federal rule or regulation
- Unsafe working conditions or work practices

Under Cal. Lab. Code Section 1102.5(c), an employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.

Rebuttable Presumption: Labor Code Section 1102.6 creates a rebuttable presumption of retaliation if an adverse action occurs within 90 days of the protected activity.

Statute of Limitations: Three (3) years. Cal. Code Civ. Proc. Section 338(a); Cal. Lab. Code Section 1102.5(h).

Remedies under Section 1102.5:
- Reinstatement
- Back pay with interest
- Front pay
- Compensatory damages (no cap)
- Punitive damages (no cap)
- Civil penalty up to $10,000 per violation
- Reasonable attorney's fees (mandatory for prevailing employees)

See Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703, 503 P.3d 659 (2022) (establishing employee-favorable burden-shifting framework).

B. California Fair Employment and Housing Act (FEHA)

Cal. Gov't Code Section 12900 et seq. provides comprehensive anti-retaliation protections.

Anti-Retaliation Provision: Cal. Gov't Code Section 12940(h) prohibits retaliation against any person who has opposed practices forbidden under FEHA or has filed a complaint, testified, or participated in any proceeding under FEHA.

Protected Classes: Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military and veteran status, reproductive health decision making.

Administrative Exhaustion: A complaint must be filed with the California Civil Rights Department (CRD) within three (3) years of the alleged violation. Cal. Gov't Code Section 12960(e). The CRD will issue an immediate right-to-sue letter upon request.

Remedies under FEHA:
- Reinstatement
- Back pay with interest
- Front pay
- Compensatory damages (no cap)
- Punitive damages (no cap)
- Reasonable attorney's fees and costs
- Injunctive relief

C. Labor Code Section 98.6 - Wage and Hour Retaliation

Cal. Lab. Code Section 98.6 prohibits retaliation against employees who file complaints about wage and hour violations, testify in such proceedings, or exercise rights under the Labor Code.

Remedies:
- Reinstatement
- Back pay
- Civil penalty: Greater of $10,000 or lost wages for each violation
- Reasonable attorney's fees

D. Labor Code Section 232.5 - Wage Discussion Protections

Cal. Lab. Code Section 232.5 protects employees who disclose their own wages, discuss the wages of others, or inquire about another employee's wages.

E. Labor Code Section 6310 - OSHA Retaliation

Cal. Lab. Code Section 6310 prohibits retaliation against employees who make complaints about workplace safety or health hazards, file reports with Cal/OSHA, or participate in OSHA proceedings.

Rebuttable Presumption: Section 6310(b) creates a rebuttable presumption of retaliation if adverse action occurs within 90 days of protected activity.

II. NATURE OF THE PROTECTED ACTIVITY

Our client engaged in one or more forms of protected activity that triggered [Company Short Name]'s unlawful retaliation:

A. Type of Protected Activity

[Check all that apply]

Whistleblowing - Labor Code Section 1102.5
- [ ] Disclosed violation of state or federal statute to supervisor or government agency
- [ ] Disclosed violation of rule or regulation (local, state, or federal)
- [ ] Disclosed unsafe working conditions to management or Cal/OSHA
- [ ] Reported suspected fraudulent conduct
- [ ] Provided information to a government investigation

Refusal to Participate - Labor Code Section 1102.5(c)
- [ ] Refused to participate in activity violating law
- [ ] Refused to violate statutory or regulatory requirements
- [ ] Refused to falsify records or documents
- [ ] Refused to engage in fraudulent conduct

Opposition to Discrimination/Harassment (FEHA)
- [ ] Complained internally about discrimination based on [race / color / religion / sex / gender / gender identity / sexual orientation / national origin / ancestry / age / disability / medical condition / genetic information / marital status / military status / reproductive health]
- [ ] Complained internally about harassment or hostile work environment
- [ ] Reported discrimination or harassment to human resources
- [ ] Filed a formal internal complaint or grievance

Participation in FEHA Proceedings
- [ ] Filed a complaint with the California Civil Rights Department
- [ ] Filed a Charge of Discrimination with the EEOC
- [ ] Participated in a CRD or EEOC investigation
- [ ] Testified or provided information in a discrimination proceeding
- [ ] Served as a witness in a co-worker's discrimination case

Wage and Hour Protected Activity
- [ ] Filed a wage complaint with the Labor Commissioner
- [ ] Complained about overtime, meal/rest break, or other wage violations
- [ ] Discussed wages with coworkers
- [ ] Requested to inspect personnel or payroll records

OSHA/Safety Protected Activity
- [ ] Made an oral or written complaint about unsafe conditions
- [ ] Reported safety violations to Cal/OSHA
- [ ] Participated in Cal/OSHA investigation
- [ ] Refused to perform unsafe work

Other Protected Activity
- [ ] Filed a workers' compensation claim
- [ ] Requested CFRA/FMLA leave
- [ ] Requested disability accommodation
- [ ] Engaged in concerted activity protected by the NLRA
- [ ] [Other: describe]

B. Timeline of Protected Activity

C. Detailed Narrative

On [Date], our client [describe the protected activity in detail]:

[Provide comprehensive narrative including:
- What our client observed, learned, or experienced that prompted the protected activity
- The specific concerns raised or actions taken
- To whom the concerns were raised (names, titles)
- The manner of reporting (verbal, written, formal complaint)
- Any response received from management or HR
- Any instructions given to our client regarding the matter
- Any witnesses to the protected activity]

Our client's [complaint / report / testimony / action] was made in good faith and based on a reasonable belief that [the conduct complained of was unlawful / the information reported was accurate / the activity opposed was illegal].

III. THE RETALIATORY CONDUCT

A. Adverse Employment Actions

Following our client's protected activity, [Company Short Name] subjected [him/her/them] to the following retaliatory adverse employment actions:

[Check all applicable actions and provide details]

Termination/Constructive Discharge
- [ ] Our client was terminated on [Date]
- [ ] Our client was forced to resign due to intolerable conditions on [Date]

Demotion/Reassignment
- [ ] Demoted from [Former Position] to [New Position] on [Date]
- [ ] Reassigned to less desirable duties/location/shift on [Date]
- [ ] Stripped of [responsibilities / authority / direct reports] on [Date]

Compensation Reductions
- [ ] Salary reduced from $[Amount] to $[Amount] on [Date]
- [ ] Bonus denied or reduced on [Date]
- [ ] Hours reduced from [X] to [X] per week on [Date]

Performance/Discipline
- [ ] Received negative performance review on [Date] (previously had positive reviews)
- [ ] Placed on performance improvement plan (PIP) on [Date]
- [ ] Received written warning on [Date] for [pretextual reason]
- [ ] Suspended [with/without] pay from [Date] to [Date]

Hostile Treatment/Exclusion
- [ ] Excluded from meetings, communications, or decisions
- [ ] Subjected to increased scrutiny and micromanagement
- [ ] Isolated from coworkers or ostracized
- [ ] Given impossible tasks or set up to fail

Other Adverse Actions
- [ ] Denied promotion to [Position] on [Date]
- [ ] Negative reference provided to prospective employer
- [ ] [Other: describe]

B. Timeline of Retaliation and Presumption Analysis

IMPORTANT: If any adverse action occurred within 90 days of protected activity, a rebuttable presumption of retaliation applies under Labor Code Sections 1102.6 and 6310(b).

C. Evidence of Causal Connection

The causal connection between our client's protected activity and the adverse actions is demonstrated by:

1. Temporal Proximity and Statutory Presumption

The adverse actions began just [X days/weeks] after our client's protected activity. Under Cal. Lab. Code Section 1102.6, there is a rebuttable presumption of retaliation when adverse action occurs within 90 days of protected activity.

2. Knowledge

The decision-makers who took adverse action against our client had knowledge of [his/her/their] protected activity.

3. Pattern of Antagonism

Following the protected activity, our client experienced a sudden shift in treatment from positive to hostile.

4. Pretext

The reasons offered by [Company Short Name] for the adverse actions are pretextual.

IV. LEGAL CLAIMS

A. Labor Code Section 1102.5 - Whistleblower Retaliation

Our client's discharge was wrongful under California's Whistleblower Protection Act because:

[Select applicable theory]

• [ ] Disclosure Theory (Section 1102.5(b)): Our client was retaliated against for disclosing information about a violation of [state statute / federal statute / local, state, or federal rule or regulation] to [supervisor / government agency / investigator].

• [ ] Refusal Theory (Section 1102.5(c)): Our client was retaliated against for refusing to participate in an activity that would result in a violation of [law / rule / regulation].

Burden of Proof Under Lawson: Following Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703 (2022), the employee need only show that the protected activity was a "contributing factor" in the adverse action. The burden then shifts to the employer to prove by clear and convincing evidence that it would have taken the same action absent the protected activity.

B. FEHA - Retaliation

Cal. Gov't Code Section 12940(h)

FEHA prohibits retaliation against employees who oppose discriminatory practices or participate in FEHA proceedings.

Our client [opposed discrimination / filed a complaint / testified / participated in an investigation] and suffered retaliation as a result.

C. Labor Code Section 98.6 - Wage Retaliation

Our client was retaliated against for [filing a wage complaint / exercising rights under the Labor Code / discussing wages].

D. Labor Code Section 6310 - OSHA Retaliation

Our client was retaliated against for [reporting safety concerns / filing a Cal/OSHA complaint / participating in a Cal/OSHA investigation].

E. Common Law Wrongful Termination in Violation of Public Policy

Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 610 P.2d 1330 (1980)

Our client's termination violated fundamental public policies of the State of California as established by [cite specific California statutes or regulations].

F. Federal Claims (If Applicable)

[Include if federal claims are being asserted alongside California claims]

• [ ] Title VII Anti-Retaliation, 42 U.S.C. Section 2000e-3(a)
• [ ] 42 U.S.C. Section 1981 (Race-Based Retaliation)
• [ ] ADA Anti-Retaliation, 42 U.S.C. Section 12203
• [ ] ADEA Anti-Retaliation, 29 U.S.C. Section 623(d)
• [ ] FLSA Anti-Retaliation, 29 U.S.C. Section 215(a)(3)

V. DAMAGES

A. Economic Damages

1. Lost Wages (Back Pay)

2. Lost Benefits

3. Front Pay

B. Compensatory Damages for Emotional Distress

California law allows unlimited recovery of compensatory damages for emotional distress in retaliation cases:

• [Describe emotional impact]
• [Describe physical manifestations (e.g., anxiety, depression, insomnia)]
• [Describe impact on daily life and relationships]
• [Describe any medical treatment sought]

Compensatory damages: $[Amount]

C. Punitive Damages

Under California law, punitive damages are available where the employer's conduct was malicious, oppressive, or fraudulent. Cal. Civ. Code Section 3294.

Note: California does not cap punitive damages in employment cases.

Punitive damages: $[Amount]

D. Civil Penalties

• Labor Code Section 1102.5: Up to $10,000 per violation
• Labor Code Section 98.6: Greater of $10,000 or lost wages per violation

Civil penalties: $[Amount]

E. Interest

Pre-judgment and post-judgment interest at 10% per annum. Cal. Civ. Code Section 3287.

F. Attorney's Fees and Costs

California law mandates attorney's fees for prevailing employees in whistleblower and FEHA retaliation cases. Cal. Lab. Code Section 1102.5(h); Cal. Gov't Code Section 12965(c)(6).

Estimated fees through trial: $[Amount]
Estimated costs: $[Amount]

G. Summary of Damages

VI. SETTLEMENT DEMAND

Based on the foregoing, we demand that [Company Short Name] pay $[Settlement Demand Amount] in full and final settlement of all claims arising from the unlawful retaliation against our client.

Settlement Terms

In addition to the monetary payment, settlement must include:

• [ ] Neutral Reference: [Company Short Name] will provide only dates of employment and final position
• [ ] Personnel File: Expungement of all documents related to the pretextual discipline and termination
• [ ] Non-Disparagement: Mutual non-disparagement provisions
• [ ] Confidentiality: Subject to negotiation (note: Cal. Lab. Code Section 1102.5(m) limits confidentiality in certain cases)
• [ ] Unemployment: [Company Short Name] will not contest unemployment benefits

VII. RESPONSE DEADLINE

Please respond to this demand in writing within fourteen (14) calendar days of receipt, no later than [Response Deadline Date].

Critical Deadlines:
- Labor Code Section 1102.5 (3 years): [Date]
- CRD filing deadline (3 years): [Date]
- Common law wrongful termination (2 years): [Date]
- EEOC filing deadline (300 days): [Date]

If we do not receive a satisfactory response, we will file suit in [California Superior Court, County of [County]] asserting:

1. Retaliation in violation of Cal. Lab. Code Section 1102.5
2. Retaliation in violation of Cal. Gov't Code Section 12940(h)
3. Wrongful termination in violation of public policy
4. [Additional claims as applicable]

VIII. DOCUMENT PRESERVATION

This letter constitutes formal notice of litigation. [Company Short Name] must immediately implement a litigation hold to preserve all documents and ESI relevant to our client's employment, the protected activity, and all adverse actions.

Spoliation of evidence may result in sanctions and adverse inferences under California law.

IX. CONFIDENTIALITY

This letter is a confidential settlement communication protected by California Evidence Code Section 1152 and applicable state law.

We are prepared to discuss resolution of this matter at your earliest convenience. Please contact me to arrange a settlement conference.

Sincerely,

[Attorney Name]
[Title]
[Firm Name]

[Attorney Signature Block]

Enclosures:
- [ ] California Civil Rights Department Complaint (if applicable)
- [ ] Right to Sue Notice (if applicable)
- [ ] EEOC Charge of Discrimination (if applicable)
- [ ] Authorization to Represent

cc: [Client Name] (via email)
[File]

CALIFORNIA-SPECIFIC PRACTICE NOTES

Lawson Burden-Shifting: Following Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703 (2022), Labor Code Section 1102.5 claims use the framework in Section 1102.6, not McDonnell Douglas. The employee only needs to prove protected activity was a "contributing factor." The employer must then prove by "clear and convincing evidence" that it would have taken the same action regardless.

90-Day Presumption: Labor Code Sections 1102.6 and 6310(b) create a rebuttable presumption of retaliation when adverse action occurs within 90 days of protected whistleblowing or OSHA complaint.

No Damage Caps: California does not cap compensatory or punitive damages in employment retaliation cases, making California one of the most plaintiff-friendly jurisdictions.

Mandatory Attorney's Fees: Prevailing employees in Labor Code Section 1102.5 and FEHA retaliation cases are entitled to reasonable attorney's fees as a matter of law.

CRD Process: The California Civil Rights Department (formerly DFEH) allows for immediate right-to-sue letters upon request. The 3-year filing deadline is among the longest in the nation.

PAGA Implications: Consider whether the Private Attorneys General Act (Cal. Lab. Code Section 2698 et seq.) applies to seek penalties on behalf of all aggrieved employees.

Confidentiality Limitations: Labor Code Section 1102.5(m) prohibits confidentiality provisions that prevent disclosure of information about unlawful acts in the workplace, including sexual harassment.

Independent Contractor Misclassification: Under AB 5 and Labor Code Section 2750.3, consider whether the client was misclassified as an independent contractor, which may provide additional claims and protections.