Navigating California's New Rebuttable Presumption Law

March 1, 2024 Articles

The ever-evolving landscape of employment laws in California has introduced a notable change with the implementation of a new law that establishes a rebuttable presumption of retaliation in some circumstances. This law, which took effect recently, significantly impacts how employers should handle disciplinary actions or terminations within 90 days of a protected complaint. This article details the legislation, explores its implications, explains the burden shifting analysis, and offers practical guidance for employers to mitigate risks.

Understanding the Rebuttable Presumption Law

The new law creates a rebuttable presumption of retaliation for certain Labor Code violations if an employee faces discipline or termination within 90 days of making a protected complaint. While risks posed by discipline in temporal proximity to complaints is not new, this legislation eases employees’ burden to allege retaliation. Previously, employees first had to establish a prima facie case, after which the employer could present a legitimate reason for the adverse employment action. The new law presumes the existence of a prima facie case if the adverse action occurs within 90 days of a complaint. Employers now effectively bear the initial burden to demonstrate a legitimate reason for the disciplinary action, at which point the employee must show that such reasons are actually “pretext” to establish their claim.

It is important to note that the rebuttable presumption applies specifically to labor code retaliation claims, including whistleblower retaliation and unequal pay allegations.

Addressing Key Questions Surrounding the Rebuttable Presumption Law

Retroactivity: One pressing question employers may have is whether the law applies retroactively. As of now, neither the legislation nor interpretive case law clarifies this issue. However, judges may apply this new standard moving forward.

Documenting Issues: Given the significance of the timing of disciplinary actions in proximity to complaints, employers should meticulously document performance management issues. The 90-day window is crucial, but is not an absolute safeguard. The law acknowledges that actions taken after 90 days could still be considered retaliatory, especially if there is a continuous pattern of complaints.

Practical Guidance for Employers

In light of the new rebuttable presumption, employers can take proactive steps to navigate potential pitfalls and mitigate the risks associated with retaliation claims:

  • Enhanced Documentation Practices: More than ever, Employers will need to document employee performance issues, disciplinary actions, and any relevant context. This documentation is crucial to defend against potential retaliation claims, and establish a legitimate business case for adverse actions.
  • Timely and Transparent Communication: When disciplinary actions are taken, especially within the 90-day timeframe, communicate transparently with the affected employee. Clearly articulating the legitimate reasons for the action and providing an opportunity for the employee to address concerns can help demonstrate good faith and reduce the risk of a retaliation claim.
  • Continuous Monitoring: Given the potential for the 90-day clock to reset with each subsequent complaint, employers must remain vigilant in monitoring employee relations. Regularly assessing and addressing concerns promptly can help diffuse potential risks before they escalate.
  • Legal Consultation: Employers should seek legal counsel to stay informed about any updates or clarifications related to the new law. Legal experts can provide valuable guidance on compliance, documentation practices, and strategic approaches to minimize legal risks.

California's new rebuttable presumption law adds a layer of complexity to handling disciplinary actions in proximity to protected complaints. By adopting proactive measures, enhancing documentation practices, and staying informed about legal developments, employers can navigate this evolving landscape with greater confidence. Clear communication, continuous monitoring, and a commitment to fair employment practices are essential components of successfully addressing the challenges posed by this recent legislative change. As employers adapt to these shifts, the key lies in fostering a workplace culture that prioritizes transparency, accountability, and compliance with the ever-changing legal framework.

Firm Highlights


Navigating California's Workplace Violence Prevention Law

California has introduced a new requirement compelling most employers to implement a workplace violence prevention policy by July 1, 2024. The implications of this law are significant, prompting the need for human resource executives...

Read More

Employment Law Symposium Recordings & Articles

Employers Face Significant New Requirements for Severance Agreements and Non-Competes  (Recording) Conducting Effective, Defensible Investigations (With Lessons Learned from Summary Judgment & Trial)  (Recording) California Employment Law Updates: What to Look Out for in...

Read More

California’s Estrada Decision and Impact on Employers and PAGA Claims

Following Estrada v. Royalty Carpet Mills, Inc. , the California Supreme Court’s employee-friendly Private Attorneys General Act (PAGA) ruling earlier this year, employers must remain more diligent than ever to prevent and mitigate costly...

Read More

California Employment Law Updates: What to Look Out for in 2024

Farella's 2024 Employment Law Symposium provided invaluable insights that will keep you and your talent team at the forefront of California employment law trends. The Symposium offered a unique chance to deepen your understanding of new...

Read More

SB 699 and AB 1076: California Enacts Further Prohibitions on Noncompete Agreements

California is expanding its longstanding prohibition on noncompete agreements in 2024, in some of the most impactful legislative changes California employers should address in the new year. Effective Jan. 1, 2024, two new laws...

Read More

Trial Courts’ Tool Box Doesn’t Include PAGA Manageability Authority

In Estrada v. Royalty Carpet Mills, Inc. , the California Supreme Court jump-started 2024 with a boon to employees, ending trial courts’ inherent authority to dismiss unmanageable claims under the Private Attorneys’ General Act...

Read More