Soon it will be easier for California employees to establish a prima facie claim of retaliation in violation of California law. On October 8, 2023, Governor Gavin Newsom signed Senate Bill No. 497 into law. Also referred to as the Equal Pay and Anti-Retaliation Protection Act, the legislation amends California Labor Code Sections 98.6, 1102.5 and 1197.5 and will create a presumption of retaliation when an employer takes an adverse employment action against an employee within 90 days of the employee engaging in conduct protected under any of the specified Labor Code sections.

Under California law, a prima facie claim of retaliation requires a showing that:

1. the employee engaged in protected conduct,
2. the employer took an adverse employment action against the employee and
3. the circumstances indicate a causal connection between the protected conduct and the adverse employment action.

Courts apply the following three-step burden shifting analysis to retaliation claims:

1. the plaintiff employee first has the burden of establishing a prima facie claim,
2. if the employee does so, the employer may rebut the presumption by establishing a lawful, non-retaliatory reason for the adverse employment action, and
3. to prevail on his or her claim, the employee must then establish that the non-retaliatory reason presented was pretextual (or not genuine).

SB 497 makes it easier for an employee to establish a claim of retaliation and satisfy the first step of the burden shifting analysis. Under...

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