What is California’s 90-day retaliation presumption?

Timing used to be circumstantial evidence. An employee complained about unpaid overtime in March and was fired in April, and it was up to the employee to prove the two were connected. In California, that is no longer how it starts.

What did SB 497 change?

SB 497 amended Labor Code 98.6, 1102.5 and 1197.5, effective January 1, 2024. If an employer takes adverse action within 90 days of protected activity, the law presumes the action was retaliation. The employer then has to produce a legitimate, non-retaliatory reason, and the employee can still argue that reason is a cover.

Adverse action is broad: termination, suspension, demotion, discipline, a cut in hours or a threat of any of these.

What activity starts the 90-day clock?

• Complaining about unpaid wages, missed breaks or other Labor Code rights, internally or to the Labor Commissioner.
• Raising an equal pay concern, or discussing or asking about coworkers’ pay.
• Reporting a suspected violation of law to a government agency, or to a supervisor or anyone with authority to investigate it.
• Using or requesting protected rights, such as paid sick leave.

The employee does not have to be right about the underlying violation. A good-faith complaint is enough. The window runs in calendar days.

What does it cost?

On top of lost wages and reinstatement, SB 497 added civil penalties of up to $10,000 per employee for each violation, paid to the employee rather than the state. Whistleblower claims under Labor Code 1102.5 carry a second burden: once the employee shows the complaint was a contributing factor, the employer must prove by clear and convincing evidence that it would have made the same decision anyway. Employees have one year to file a retaliation complaint with the Labor Commissioner.

Where is the gap?

The presumption covers the Labor Code sections SB 497 amended. Retaliation for a harassment or discrimination complaint runs under the Fair Employment and Housing Act, which has its own rules and no 90-day presumption. That is not a safe harbor. A FEHA retaliation claim can still succeed, and in practice timing still carries weight with a jury. Treat every complaint the same way.

How should employers document discipline?

The presumption does not stop you from managing performance. It raises the cost of managing it badly.

• Document performance problems when they happen, not after a complaint. A write-up dated before the complaint is your strongest evidence.
• Before any adverse action, check whether the employee made a complaint or used a protected right in the past 90 days.
• If the answer is yes, confirm the decision matches how you treated others with the same issue.
• Keep the person investigating the complaint separate from the person making the discipline decision where you can.
• Train managers that a complaint is not a reason to speed up a termination. It is a reason to slow down and check the file.

The termination documentation guide covers what the file should hold before any separation.

What if you are the employee?

Write down the date you raised the concern, who you told and how, and keep a copy of any email. If you are disciplined or let go within 90 days, that record is what triggers the presumption. A complaint can go to the Labor Commissioner, and an employment attorney can tell you whether the facts support a claim.

A compliance checkup reviews your discipline process and manager training against the 90-day rule before a termination tests it.

McKinley holds a J.D. but is not a licensed attorney. Articles here are general information, not legal advice. For your specific situation, talk with an employment attorney.

Data current as of September 2026. Sources are linked where each figure appears.