Ninety days is the number California employers need to know. Under Labor Code section 98.6, if an employer takes action the statute prohibits “within 90 days of the protected activity specified in this section, there shall be a rebuttable presumption in favor of the employee’s claim.” A complaint about unpaid wages is protected activity. So a firing that lands soon after a pay complaint starts out presumed retaliatory, and the defense rests on a legitimate reason shown in records made before the complaint.
What does Labor Code section 98.6 protect?
It protects far more than a formal claim filed with the state. Section 98.6(a) bars any adverse action against an employee or applicant who filed “a bona fide complaint or claim” over rights the Labor Commissioner enforces, or who “made a written or oral complaint that they are owed unpaid wages.” The statute also covers employees who start a PAGA action or notice, testify in one, or exercise rights afforded to them “on behalf of themselves or others.” (PAGA is the Private Attorneys General Act, the law that lets an employee sue for civil penalties on the state’s behalf.)
Three features catch employers off guard.
The complaint doesn’t have to go to an agency. An employee who tells a shift manager that last Saturday’s hours never showed up on the paycheck has made an oral complaint about unpaid wages. That’s protected under the plain text.
Applicants are covered too, and so are relatives. Section 98.6(e) bars retaliation against an employee “because the employee is a family member of a person who has, or is perceived to have, engaged in” protected conduct.
The list of prohibited actions is broad. Section 98.6(a) says a person shall not “discharge an employee or in any manner discriminate, retaliate, or take any adverse action against” the employee. A cut in hours, a schedule change, or a write-up can all be pleaded as adverse actions.
How does the 90-day presumption work?
It applies to any prohibited action taken within 90 days after the protected activity, and the employer then has to rebut it. The Legislature added the sentence in Senate Bill 497 (Stats. 2023, ch. 612), effective January 1, 2024.
What the statute doesn’t say is what kind of presumption it is. Evidence Code section 601 provides that “Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof.” The difference matters a great deal in a retaliation case.
If it’s the first kind, Evidence Code section 604 says the presumption holds only “unless and until evidence is introduced which would support a finding of its nonexistence.” Once the employer offers real evidence of a legitimate reason, the presumption drops away and the jury weighs the evidence. If it’s the second kind, Evidence Code section 606 puts on the employer “the burden of proof as to the nonexistence of the presumed fact,” which means the employer has to persuade the jury that retaliation wasn’t the reason.
No published California appellate opinion has yet decided which kind the section 98.6 presumption is. Employers should plan for the harder version. In practice that means the legitimate reason has to exist on paper before the complaint, not in a memo written afterward.
Day 91 isn’t a safe harbor either. The presumption ends, but timing is still evidence. A jury can infer retaliation from a firing four months after a wage complaint if nothing else explains it.
What can an employee recover under section 98.6?
Reinstatement, lost wages and benefits, and a civil penalty paid to the employee. Section 98.6(b)(1) entitles an employee who was retaliated against “to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.” Section 98.6(b)(3) adds that an employer who violates the section “is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section, to be awarded to the employee or employees who suffered the violation.”
The statute’s words “per employee for each violation” are where exposure grows. A plaintiff’s lawyer will try to count a schedule cut, a write-up, and a termination as separate violations. Whether each act is a separate violation is an argument worth having, and it’s one the employer should make early.
Section 98.6 also has a criminal edge. Under section 98.6(b)(2), an employer that willfully refuses to rehire or restore an employee found eligible “by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.”
What happens when the employee files with the Labor Commissioner instead of suing?
The Labor Commissioner investigates, and it can direct much of the same relief a court can. Under Labor Code section 98.7, each complaint is assigned to a discrimination complaint investigator who interviews witnesses and reviews documents. If the Labor Commissioner finds a violation, it can direct the employer to take action including “rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of penalties, payment of reasonable attorney’s fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees.”
Two parts of section 98.7 deserve attention. First, during an investigation the Labor Commissioner can ask a superior court for temporary injunctive relief, and section 98.7(b)(2)(F) says that relief “shall not be stayed pending appeal.” An employer can face a court order while the investigation is still open. Second, the agency route is optional. Section 98.7(g) says “there is no requirement that an individual exhaust administrative remedies or procedures,” and section 98.7(f) preserves the employee’s other remedies. Nothing stops an employee from skipping the agency and going straight to court.
Why do wage retaliation lawsuits plead section 1102.5 too?
Because a pay complaint made to the employer is also a whistleblower disclosure, and section 1102.5 carries remedies section 98.6 lacks. In People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719, a bartender complained to the nightclub’s owner about unpaid wages for three shifts. The owner fired her and threatened to report her to immigration authorities. The Supreme Court of California held that her complaint to the owner was a protected disclosure under section 1102.5(b), even though the employer already knew it hadn’t paid her. The court also observed that “section 98.6 incorporates violations of other sections of the Labor Code, including section 1102.5.”
The court explained the practical difference in the same opinion: “only section 1102.5 authorizes courts to award reasonable attorney’s fees” to a successful plaintiff. That fee provision, found in section 1102.5(j), is why plaintiffs’ lawyers plead both statutes. It also brings in the burden-shifting rule of section 1102.6, which requires the employer to prove by clear and convincing evidence that it would have taken the same action for legitimate, independent reasons once the employee shows the complaint was a contributing factor.
An employee who’s wrong about the law can still be protected. In Contreras v. Green Thumb Produce, Inc. (2025) 116 Cal.App.5th 1251, a published Fourth District opinion, the employee brought a Labor Commissioner handout on the Equal Pay Act to work, planning to use it to ask for a raise because coworkers doing similar work earned more. His manager saw it at lunch and took him to the human resources manager, who denied the raise. He was sent home that day and told the next morning that he’d been fired. The company’s witness testified about attendance problems and past discipline. The jury found for the employee anyway, on claims that included section 98.6 and section 1102.5. His reading of the Equal Pay Act was mistaken, and the trial court set aside the section 1102.5 verdict on that ground, but the Court of Appeal reversed, because section 1102.5(b) “only requires an employee to have ‘reasonable cause’ to believe that a law has been violated.” Contreras involved an equal pay theory, not unpaid wages, but I’d expect the same reasoning to be argued in a wage case. An employer that never owed the money has a good answer to the wage claim and not necessarily to the retaliation claim. The wage dispute and the retaliation dispute are separate fights.
A wage retaliation suit sometimes names the manager who made the decision. Whether that manager can be personally liable is its own question, covered in our post on whether supervisors can be personally sued for whistleblower retaliation in California.
How do the retaliation claims compare?
| Claim | Statute | What the employee has to show | Exposure and its conditions | Where the defense starts |
|---|---|---|---|---|
| Labor Code retaliation | Lab. Code § 98.6 | A written or oral wage complaint or other protected conduct, then an adverse action because of it, presumed if taken within 90 days | Reinstatement, lost wages and benefits, and a civil penalty up to $10,000 per employee for each violation, paid to the employee | A legitimate reason documented before the complaint, a decision-maker who didn’t know about it, and whether each act is a separate violation |
| Whistleblower retaliation | Lab. Code §§ 1102.5, 1102.6 | Reasonable cause to believe a law was violated, and the disclosure was a contributing factor | Other available remedies, plus a civil penalty up to $10,000 per employee for each violation under § 1102.5(f), and attorney’s fees to a successful plaintiff under § 1102.5(j) | Clear and convincing proof that the same decision would have been made anyway |
| Labor Commissioner complaint | Lab. Code § 98.7 | The same violation, proved in an agency investigation (filing here first isn’t required before a lawsuit) | Reinstatement, back pay with interest, penalties, hearing-related attorney’s fees, and notice posting, plus temporary injunctive relief that isn’t stayed on appeal | A complete, early response to the investigator, with the documents |
What should an employer do before disciplining someone who just complained about pay?
Slow down and separate the two issues. I think the worst time to act on a long-standing performance problem is the week after the employee complains about a paycheck. If the problem was real, it’ll still be real in a month, and the file can be built properly in the meantime.
The fix for the wage complaint itself should be fast and boring. Pay what’s owed, with a correct wage statement, and keep a record of the review. A paid complaint takes most of the anger out of the relationship and gives the employer a clean fact to point to later.
Keep the person whose pay practice was criticized out of the discipline decision if you can. When the manager who shorted the overtime also signs the termination, the employee’s lawyer has a motive witness and a decision-maker in the same person. A second reviewer who looks at the file cold is cheap insurance.
When a retaliation claim, agency notice, or lawsuit has already arrived, the order of operations matters:
- Issue a litigation hold covering the employee’s personnel file, timekeeping and payroll data, schedules, the manager’s emails and texts, and the handbook and pay policies in force at the time.
- Calendar the deadline on the Labor Commissioner notice or the summons, and check for an arbitration agreement and for an employment practices liability (EPLI) policy that requires prompt notice.
- Identify every person who knew about the wage complaint and every person who took part in the challenged decision, and pause any further action affecting the employee until a lawyer has reviewed it.
- Pull the wage complaint itself, the payroll records it concerned, and every document showing the reason for the decision and when that document was created.
- Talk to a lawyer before responding to the agency, contacting the employee or the employee’s lawyer, or offering anything to settle.
The firm’s page for employment defense attorneys in California describes how retaliation claims and wage disputes are defended.
Wage complaint retaliation questions from California employers
Is a complaint to a supervisor protected, or only a complaint to the state?
Both are protected. Section 98.6(a) covers an employee who “made a written or oral complaint that they are owed unpaid wages,” with no requirement that the complaint go to an agency. The Supreme Court’s decision in Kolla’s also treats a pay complaint to the employer as a protected disclosure under section 1102.5(b), even when the employer already knew about the problem. Train managers to route pay questions to payroll or HR in writing, and treat every one as protected.
Can we still terminate an employee within 90 days of a wage complaint?
Yes, if the reason is legitimate and provable. The presumption is rebuttable, and the statute doesn’t bar discipline for misconduct or poor performance. But the employer should expect to carry the weight of showing that reason. Ask whether the problem was documented before the complaint, whether others with the same problem were treated the same way, and whether the decision-maker knew about the complaint.
Does the employee have to file with the Labor Commissioner before suing?
No. Section 98.7(g) says “there is no requirement that an individual exhaust administrative remedies or procedures,” and section 98.7(f) preserves the employee’s other remedies. An employee can file with the Labor Commissioner, go straight to court, or do both in sequence. If the employee files with the agency and later sues on the same facts, the statute lets the Labor Commissioner close its investigation.
What if no wages were actually owed?
That helps on the wage claim but may not end the retaliation claim. Section 98.6(a) protects a “bona fide complaint or claim” filed over rights the Labor Commissioner enforces, and separately protects a “written or oral complaint that they are owed unpaid wages,” a clause with no “bona fide” qualifier. Under section 1102.5(b), the published Contreras opinion held that a lay employee’s mistaken reading of the law doesn’t always defeat the claim, though the belief must be reasonable and must concern a law that exists. Defend the wage claim on the merits and the retaliation claim on the reason for the decision.
If a former employee says they were fired for asking about pay
If an employee’s lawyer or the Labor Commissioner says your company retaliated after a wage complaint, the timing and the documents made before that complaint usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving retaliation for wage complaints. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Labor Code section 98.6, Labor Code section 98.7, Labor Code section 1102.5, and Evidence Code sections 601, 604, and 606. The 2023 amendment is Senate Bill 497. The decisions are People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719 and Contreras v. Green Thumb Produce, Inc. (2025) 116 Cal.App.5th 1251, certified for publication.
This post is general information about California and federal employment law as of November 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.