Does California Law Protect You From a Former Employer’s Retaliation?
Key Takeaways: Yes, a former employer can often be held liable for retaliating against you after you leave. FEHA protects "any person" who engaged in protected activity, and the California Labor Code and federal law have also been applied to former employees. Post-employment retaliation can include false references, blacklisting, threats, refusing to rehire, or severance terms that try to silence you about unlawful workplace conduct. Under Government Code § 12964.5, separation agreement provisions barring you from disclosing unlawful workplace acts are generally unenforceable, with limited exceptions. You must also be told you can consult an attorney and be given at least five business days to do so. A viable claim generally requires protected activity, an adverse action, and a causal link. Deadlines vary by claim, and most FEHA claims require a California Civil Rights Department complaint and a right-to-sue notice before a lawsuit. Because deadlines are strict, have an experienced employment attorney review your facts early.
Yes. In many cases, a former employer can be held liable for retaliating against you after you leave the job. California’s Fair Employment and Housing Act (FEHA) bars retaliation against "any person" who has engaged in protected activity. The California Labor Code and federal anti-retaliation laws can also protect former employees. A viable claim depends on your protected activity, what the former employer did, and whether you can link the two.
If you believe a past employer is punishing you for speaking up, an experienced attorney can review the facts with you. Moore Ruddell LLP represents employees throughout Los Angeles, Riverside County, San Bernardino County, and Southern California. Call (310) 792-7010 or schedule a free consultation with our team.
What Counts as Post Employment Retaliation in California?
Post employment retaliation happens when a former employer takes harmful action against you because of something legally protected that you did. You may have reported harassment, complained about discrimination, raised a wage violation, or taken part in an investigation. The retaliation can come weeks or months after you leave.
California Government Code § 12940(h) is the main FEHA retaliation provision. It makes it unlawful for an employer or person to "discharge, expel, or otherwise discriminate against any person" because that person opposed practices FEHA forbids, or filed a complaint, testified, or assisted in a FEHA proceeding. You can read the full text of the California Fair Employment and Housing Act on the Legislature’s website. The words "any person" and "otherwise discriminate" give former employees a strong basis for arguing FEHA reaches post-separation conduct, though outcomes depend on the facts. FEHA’s employment provisions generally apply only to employers with five or more employees, and individual supervisors are generally not personally liable for FEHA retaliation.
What Does Former Employee Retaliation Look Like in Practice?
Former employee retaliation usually shows up in a few recognizable ways. Common examples include:
- Giving a negative or false employment reference to a prospective employer
- Telling other companies not to hire you because of your past complaints (blacklisting)
- Threatening legal action or other consequences to stop you from testifying or cooperating with an investigation
- Refusing to rehire you because of earlier protected activity
- Inserting terms into a separation agreement that try to stop you from talking about unlawful workplace conduct
The U.S. Equal Employment Opportunity Commission (EEOC) recognizes similar conduct under federal law. It states that it is unlawful to retaliate against applicants, employees, or former employees for participating in discrimination proceedings or opposing discriminatory practices, and its list of retaliatory actions includes giving a former employee a negative or false reference.
Which California Retaliation Laws Protect Former Employees?
Several overlapping statutes may apply, depending on the type of protected activity involved. The table below gives a general overview.
| Law | What It Protects | Example of Post-Separation Retaliation |
|---|---|---|
| Gov. Code § 12940(h) (FEHA) | Opposing discrimination or harassment, filing complaints, testifying | False reference after a harassment complaint |
| Gov. Code § 12945.2(k)(1)-(2) (CFRA) | Taking family or medical leave, or testifying about leave rights | Retaliation after a former worker testifies about CFRA leave |
| Gov. Code § 12945.6 | Using reproductive loss leave, or giving information about it | Refusing to hire someone because of protected leave |
| Labor Code § 98.6 | Wage claims, labor law complaints, participating in investigations | Bad-mouthing a worker who filed a wage claim |
| Labor Code § 1050 | Protection against blacklisting through misrepresentation | Misrepresenting you to prospective employers to keep you from being hired |
| Gov. Code § 12964.5 | The right to disclose unlawful workplace acts | Gag clauses in severance agreements |
How Do CFRA and Leave Protections Extend Past Employment?
California Government Code § 12945.2(k)(1)-(2) prohibits employers from refusing to hire, firing, fining, suspending, expelling, or discriminating against someone for using CFRA family and medical leave. It also protects people who give information or testimony about CFRA leave. Government Code § 12945.6 gives similar protection to people who use reproductive loss leave or provide information about it, including protection against a refusal to hire.
What About Wage Complaints and Blacklisting?
The California Labor Commissioner’s Office (DLSE) enforces Labor Code § 98.6. That statute prohibits retaliation against workers who file wage claims, complain about labor law violations, or take part in investigations. Remedies may include reinstatement, reimbursement for lost wages and benefits, and a civil penalty of up to $10,000 per violation. Labor Code § 1050 bans blacklisting by generally prohibiting a former employer from misrepresenting you to keep you from getting a new job. Under Labor Code § 1054, violations can lead to civil liability, including treble damages. Former employees can file through the Labor Commissioner’s retaliation process, which is separate from a civil lawsuit.
Can a Severance Agreement Silence You About Unlawful Conduct?
Generally, no. Under Government Code § 12964.5(b)(1)-(3), it is an unlawful employment practice for an "employer or former employer" to include a provision in a separation agreement that prohibits disclosing information about unlawful acts in the workplace. Any such provision is against public policy and unenforceable. Any nondisparagement or confidentiality clause must also state that you are not prohibited from disclosing such information.
The statute defines "information about unlawful acts in the workplace" broadly, with some limits. It covers harassment, discrimination, or any other conduct you have reasonable cause to believe is unlawful. An employer may still keep the severance amount confidential and protect legitimate trade secrets that do not involve unlawful acts. The rule also does not apply to negotiated settlements of claims you have already filed in court, with an agency, in alternative dispute resolution, or through the employer’s internal complaint process.
Your employer generally must also give you time to get legal advice. Section 12964.5(b)(4) requires an employer offering a separation agreement to tell you that you have the right to consult an attorney and to give you at least five business days to do so.
💡 Pro Tip: Do not sign a separation agreement on the spot. Use your review period to have an attorney check whether it waives claims you may want to keep or includes unenforceable confidentiality language.
What Makes a Post-Employment Retaliation Claim Viable?
Not every bad experience with a former employer amounts to legal retaliation. A viable claim generally requires proof that you engaged in protected activity, the former employer took an adverse action against you, and a causal connection exists between the two. An unflattering but truthful reference, given for reasons unrelated to protected activity, may not support a claim.
Evidence of causation is often the deciding factor. Courts may consider timing, statements by decision-makers, how the employer treated other former employees, and whether the employer’s explanation appears to be pretext. Helpful evidence can include emails, a recruiter’s account of what your former employer said, or testimony from people who heard the reference.
Damages also shape whether a case is worth pursuing. Lost job offers, lasting career harm, or significant emotional distress tend to carry more weight than isolated minor incidents. A post employment retaliation lawyer can help you assess both liability and the realistic value of your claim.
💡 Pro Tip: If you suspect a bad reference, write down the dates of interviews, the names of hiring contacts, and exactly when offers were withdrawn.
How Do You File a California Retaliation Law Claim?
The correct path depends on which law was violated. For FEHA claims, you generally must file a complaint with the California Civil Rights Department (CRD, formerly DFEH) and get a right-to-sue notice before filing a lawsuit. Wage-related retaliation may go through the Labor Commissioner, a civil lawsuit, or both. Federal claims, such as those under Title VII, generally require an EEOC charge first.
Deadlines are strict and vary by claim type. A FEHA complaint generally must be filed with the CRD within three years of the retaliatory act. A Labor Commissioner complaint under Labor Code § 98.6 generally must be filed within one year. An EEOC charge in California generally must be filed within 300 days. Once the CRD issues a right-to-sue notice, you generally have one year to file a lawsuit. Public employees face separate rules. For example, Government Code § 8547.8 may allow state employees who face retaliation for protected disclosures to seek damages, but they generally must first file a complaint with the State Personnel Board.
Can Wrongful Termination Claims Overlap With Retaliation?
Yes, a single set of facts can support more than one claim. A wrongful termination in violation of public policy, often called a Tameny claim, is separate from FEHA discrimination or retaliation. If you were fired for complaining and then faced more retaliation after leaving, both events may be relevant, though each may have its own deadline. Learn more about FEHA retaliation protections and how they apply.
Frequently Asked Questions
1. Can my former employer legally give me a bad reference in California?
A former employer may generally share truthful, job-related information. However, a negative or false reference given because you engaged in protected activity may be retaliation under FEHA or the Labor Code. A misrepresentation meant to keep you from finding work may also violate Labor Code § 1050.
2. Does it matter how long ago I left the job?
Not necessarily. Retaliation protections are tied to your protected activity, not your employment status. However, a long gap between the complaint and the adverse action can make causation harder to prove. Filing deadlines generally run from the date of each retaliatory act.
3. Is a nondisparagement clause in my severance agreement enforceable?
It depends on the wording. Under Government Code § 12964.5, provisions that prevent you from disclosing information about unlawful workplace acts are generally unenforceable, and nondisparagement clauses must include a carve-out preserving that right. Confidentiality over the severance amount may be allowed.
4. Do I need to file with an agency before suing?
For FEHA claims, yes. You generally must file with the California Civil Rights Department and get a right-to-sue notice first. Other claims follow different procedures, so an attorney can help you identify the right path.
Speaking Up Should Not Follow You to Your Next Job
California law generally does not let former employers punish workers for reporting harassment, discrimination, wage violations, or other unlawful conduct. Whether you have a strong claim depends on your protected activity, the harm you suffered, and the evidence linking them.
You do not have to sort this out alone. The team at Moore Ruddell LLP works with employees across Los Angeles, Riverside, and San Bernardino counties who have faced retaliation. Call (310) 792-7010 or contact Moore Ruddell LLP today to schedule a free consultation.
Disclaimer: This content is for informational purposes only and is not legal advice. Every case is unique, and results may vary. Consult an attorney about your specific circumstances.
