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HealthSouth Surgery Center Litigation
In December 2003, Dan commenced litigation against Health South Surgery Centers-West, Inc. and its subsidiaries, exposing the company’s extensive mismanagement and misconduct of its surgery centers.
Welcome. Before You Get Started:
The information on this page is designed to help you better understand the employment issue facing your business, the questions that may need to be answered, and the decisions that may lie ahead. You remain in control of when and how you proceed.
As you read, if something raises a concern, confirms an issue you are already facing, or simply leaves you with a question, you can speak with the Watkins Firm without leaving the page or interrupting your review.
The Watkins Firm provides a complimentary, private, and substantive consultation so you can discuss the specific circumstances facing your business. You are welcome to continue reading and orient yourself first. When you are ready to ask questions or talk through your situation, we are available.
You are searching for information, and our hope is to provide it. Ask questions when you have them. Reach out when you are ready.
What Does It Mean When an Employer Is Accused of Retaliation?
For a San Diego or Southern California employer, a retaliation claim often begins with two separate events. An employee complains about, reports, participates in, or raises a workplace issue—and the employer subsequently takes an employment action involving that employee. The employee then attempts to allege that the second event happened because of the first.
The Basic Employer Retaliation Allegation
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The Employee Does Something That May Be Protected
A complaint, report, participation in an investigation, or another workplace activity that may be legally protected.
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The Employer Takes an Employment Action
Termination, discipline, compensation or schedule changes, reassignment, performance evaluation, advancement decisions or other changes affecting the employee.
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The Employee (through plaintiff’s attorney) Attempts to Connect the Two
The employee alleges that the employer took the action because of the earlier protected activity.
California employers can be exposed to substantial financial and legal consequences under these statutes. A violation of California Labor Code § 98.6 carries a civil penalty of up to $10,000 per employee for each violation, regardless of how the business is structured, in addition to remedies such as reinstatement and back pay. California Labor Code § 1102.5 carries the same $10,000-per-violation civil penalty, but that penalty applies specifically to employers organized as corporations or limited liability companies. In either case, an employee who prevails may also seek to recover attorney's fees, and in some cases, additional damages through a private lawsuit.
This is why it is important to seek the advice and counsel of the experienced, proven employer defense attorneys at Watkins Firm the moment you suspect or become aware of any potential liability as an employer in the greater San Diego area, and across Southern California.
Why Timing Matters More Than Ever
Since January 1, 2024, California law has made the timing between an employee's protected activity and any subsequent employment action especially significant. Under SB 497¹, if an employer takes an adverse action against an employee within 90 days of that employee engaging in protected activity — such as a wage complaint or a whistleblower disclosure — the law now presumes the two are connected, unless the employer can show otherwise.
90
DAYS
This does not mean the employer is automatically liable. It means the practical starting point of the analysis has shifted: instead of the employee having to prove the connection from scratch, the employer must be prepared to show a legitimate, well-documented, non-retaliatory reason for the decision. Employers who already have clear records — performance reviews, prior warnings, documented business reasons — are in a far stronger position to meet that standard than those relying on memory or informal explanations after the fact.
This is also why the guidance at the outset of this page matters most in the weeks and months surrounding any employee complaint or report: decisions made, or actions taken, during that window deserve extra care, extra documentation, and, ideally, legal input before they happen — not after a claim is filed.
¹ SB 497 (the Equal Pay and Anti-Retaliation Protection Act) amended California Labor Code §§ 98.6, 1102.5, and 1197.5 to create this rebuttable presumption.
The Original Complaint and the Retaliation Claim Are Two Different Problems
Timing is only part of the picture. Even where the 90-day presumption doesn't apply, or an employer successfully rebuts it, a retaliation claim can still stand entirely on its own — separate from whatever happened with the employee's original complaint.
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A retaliation claim rarely develops in isolation. It routinely attaches itself to an underlying workplace dispute, such as a wage and hour discrepancy, a PAGA action, or a discrimination complaint.
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A current or former employee may pursue damages for retaliation even if the underlying workplace complaint is ultimately proven to be factually incorrect.
One of the most important things for an employer to understand is that the retaliation allegation creates a separate problem from the employee's original complaint.
A current or former employee may pursue damages for retaliation even if the underlying workplace complaint is ultimately proven to be factually incorrect. Under whistleblower and discrimination-based retaliation theories, what matters is not whether the complaint turns out to be true, but whether the employee held a reasonable, good-faith belief that a violation had occurred at the time they raised it. This is precisely why the two issues must be evaluated separately: an employer can prevail entirely on the underlying dispute and still face exposure on the retaliation claim.
That said, the reasonable, good-faith belief requirement is not a formality, and it is not automatically satisfied. A complaint that was frivolous, made in bad faith, or based on no reasonable belief at all can undermine the retaliation claim itself — making the credibility and basis of the original complaint a real point of defense, not an irrelevant one.
What Will Matter in Defending the Employer?
The chronology of events can become critical:
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What happened before the employee raised the issue?
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What employment decisions had already been made or were already under consideration?
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What do the employer’s records, communications and prior documentation establish?
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What happened afterward?
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Who made those decisions, and why?
The issue is not simply whether the employer had a legitimate reason to discipline, terminate or take another employment action. The employer must be prepared to establish what actually happened, when it happened, why the action was taken, and the legitimate business reasons behind that decision.
Pay Attention When an Employee Has Recently:
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Raised concerns or made a complaint involving wages, payroll, hours or other compensation issues.
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Reported workplace safety concerns or potentially illegal workplace conduct.
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Made a complaint involving discrimination, harassment or other workplace treatment.
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Reported alleged wrongdoing by management, ownership or another employee.
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Participated in or cooperated with an internal or external workplace investigation.
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Participated in a PAGA matter or other employment-related claim or proceeding.
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Requested or exercised sick leave, family leave or another protected leave.
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Requested a religious or disability-related accommodation.
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Filed or pursued a workers' compensation claim.
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Participated in union activity or efforts involving workplace organization.
The existence of one of these circumstances does not mean that every subsequent employment decision is retaliation. It does mean that the employer should recognize the potential issue before taking action and carefully consider the timing, documentation, history and legitimate business reasons supporting the decision.
The Question Is What Happens Next
If the employee already had documented performance problems, violated company policy, was subject to discipline, or was affected by a legitimate business decision, those issues do not simply disappear because the employee subsequently made a complaint or engaged in another protected activity.
But the employer's response matters.
Before discipline, termination, reassignment or another consequential employment decision is made, management should understand what has already been documented, what communications have occurred, who is making the decision, why the action is necessary, and how the sequence of events may appear later if the decision is challenged.
That is particularly important when the employee's protected activity and the contemplated employment action occur close together in time.
The Next Action Step
If an employee has recently raised a workplace issue and you are considering discipline, termination or another significant employment action, this is an appropriate time to involve the Watkins Firm before the decision is finalized or communicated to the employee.
We invite you to a complimentary and substantive conversation regarding your situation, objectives, and concerns. You can reach out through the chat module on this page, our contact form, or by calling (858) 535-1511.
Frequently Asked Questions About Employer Retaliation Claims in California
01 Can an Employee Bring a Retaliation Claim Even If Their Original Complaint Was Wrong?
Yes. The retaliation allegation and the employee's underlying workplace complaint can present two separate issues.
A current or former employee may pursue a retaliation claim even when the underlying complaint is ultimately proven to be factually incorrect. As discussed above, under whistleblower and discrimination-based retaliation theories, the employee's reasonable, good-faith belief at the time the concern was raised can matter.
This is why an employer should evaluate the underlying complaint and the subsequent retaliation allegation separately.
02 Can We Still Discipline an Employee Who Has Made a Workplace Complaint?
An employee's participation in a protected activity does not mean the employer can no longer manage that employee, enforce legitimate workplace policies or address genuine performance and conduct issues.
The potential problem arises when the employee alleges that the discipline occurred because of the protected activity.
Before taking action, the employer should understand the chronology, existing documentation, prior performance or conduct history, and legitimate business reasons supporting the decision.
03 Can We Terminate an Employee Who Has Recently Made a Complaint?
A workplace complaint does not automatically provide an employee with job security or eliminate the employer's ability to make legitimate employment decisions.
Termination shortly after potentially protected activity, however, can create significant retaliation issues. The employer should carefully evaluate what occurred before the complaint, what documentation already exists, who is making the termination decision, why termination is being considered and how the timing may affect a subsequent retaliation allegation.
This is an important point at which to involve the Watkins Firm before the termination is finalized or communicated.
04 What If We Were Already Considering Discipline or Termination Before the Employee Complained?
The chronology may become particularly important.
If performance concerns, disciplinary issues or a contemplated employment action existed before the employee engaged in potentially protected activity, preserve the records and communications that establish that history.
Documentation created before the retaliation dispute developed may help establish when the employer's concerns arose and the legitimate business reasons behind the contemplated action.
05 Why Does the 90-Day Period Matter in a California Retaliation Claim?
As explained earlier on this page, California law now makes timing particularly important when an adverse employment action occurs within 90 days of certain protected activity.
That does not mean the employer is automatically liable. It does mean that an employer contemplating an employment action during that period should be prepared to establish the legitimate, documented and non-retaliatory reasons supporting its decision.
06 What Should an Employer Do When an Employee First Raises a Workplace Complaint?
Take the complaint seriously, preserve the relevant information and carefully document the employee's assertions and the actions taken in response.
Management should also recognize that subsequent communications and employment decisions involving that employee may receive additional scrutiny if a retaliation allegation develops.
This is not the time for managers or supervisors to improvise independently. Sensitive investigations, communications, discipline and contemplated termination may warrant review by the Watkins Firm before additional action is taken.
07 What Should We Do If an Employee Has Already Accused the Company of Retaliation?
Preserve the existing records and communications and establish the chronology before memories fade or additional decisions complicate the situation.
Determine what the employee originally complained about, who knew about it, what employment issues existed beforehand, what happened afterward, who participated in the challenged decision and what legitimate business reasons supported it.
The Watkins Firm can help investigate the circumstances, evaluate the allegation, identify and preserve relevant information, and determine the appropriate strategy for protecting and defending the employer.
08 When Should a San Diego Employer Contact the Watkins Firm About a Potential Retaliation Problem?
Ideally, before the next consequential employment decision is made.
If an employee has recently raised a significant workplace concern and the company is considering discipline, termination, reassignment or another significant employment action, early legal guidance may allow Watkins to review the chronology, documentation, communications and proposed action before the employer commits to a course that may later be challenged.
If the allegation has already been made, prompt action remains important. The Watkins Firm represents and advises employers throughout San Diego and Southern California in developing employment disputes, investigations and litigation.
We invite you to a complimentary and substantive conversation regarding your situation, objectives, and concerns. You can reach out through the chat module on this page, our contact form, or by calling (858) 535-1511.
Defending Employers for Retaliation in San Diego and Throughout California
The Watkins Firm brings almost forty years of experience defending employers against retaliation claims in San Diego, Southern California and throughout California. That experience provides employers with practical guidance grounded in how employment disputes actually develop, escalate and move into litigation—not simply how they appear on paper.
Early counsel can help answer critical questions before additional decisions are made. What actually happened? Is the issue likely to escalate? What actions should be taken immediately, and which should be avoided? What evidence and communications need to be preserved? How should management communicate with the employee without unnecessarily compounding the problem?
Experience matters because the decisions made during the earliest stages of a retaliation dispute can directly affect the options available to the employer later.
EMPLOYER DEFENSE
The Tactical Offense: Protecting Your Management Options
When a workplace dispute emerges or an accusation is formalized, passivity, delay or informal handling can rapidly expand an employer's exposure. Effective employer defense requires understanding the facts, preserving the evidence and making deliberate decisions before the company's position becomes more difficult to protect.
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1. Conduct Immediate, Impartial Investigations
An internal complaint should be treated seriously and evaluated promptly. The Watkins Firm conducts and assists with sensitive workplace investigations designed to establish what happened, identify the people involved, preserve relevant communications and documentation, and develop an accurate chronology of events.
The objective is to understand the genuine parameters of the problem while the information, records and people involved are still available—and before additional employment decisions complicate the situation.
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2. Establish the Chronology Behind the Employer's Decision
When an employee alleges that discipline, termination or another employment action was retaliatory, the chronology behind the employer's decision can become one of the most important elements of the defense.
If performance problems, absenteeism, misconduct or another legitimate business concern existed before the employee engaged in protected activity, the employer should be able to identify the documentation and communications establishing that history.
Consistency matters as well. How similar issues were handled, what was communicated to the employee, when management concerns developed and why the employment decision was made can all become important when the employee or plaintiff's attorney attempts to characterize the employer's stated reason as a pretext for retaliation.
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3. Build a Proactive Employer Defense Before a Claim Develops
The most effective employer defense does not begin when a complaint, demand or lawsuit arrives. It begins with the structure, documentation, policies, training and access to counsel that were already in place.
Dan Watkins describes that philosophy directly:
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“When we’re talking about protecting our employer clients, the old saying, ‘a good defense starts with a good offense,’ definitely applies. What are the elements of a good offense? Employment contracts, human resource manuals, employee handbooks, rules and regulations, training and staying up to speed on the ever-changing laws in California. Having a lawyer on speed dial you can call with a question or concern and get the right answer, often without a bill!
Fast action in any of these matters is the key. Pick up the phone and call us the second that you think something’s going on. Quick action gives your lawyer the right to do things that just destroy a case in the beginning.”
— Dan Watkins, Founding Partner
SOUND BUSINESS INSIGHTS
Sound Business Insights: Common Employer Disputes and Defenses
Dan Watkins also discusses the problems employers encounter and the importance of addressing employment disputes proactively in our Sound Business Insights Podcast Episode 28 - Common Employer Disputes and Defenses.
Why Choose Daniel Watkins and the Watkins Firm?
Experience Matters When the Dispute Matters.
Daniel Watkins has practiced law in San Diego since 1987. He attended the University of San Diego School of Law, worked at respected San Diego firms, and founded his own business law firm more than 30 years ago.
For Dan, San Diego is more than the market in which he practices. It is his community. He and his team have built lasting relationships with clients, many of whom have been with the firm since its beginning.
Over the course of his career, Dan has advised California and San Diego employers and business owners through the employment decisions involved in operating and protecting their companies, from everyday workplace and personnel matters to serious employee disputes, agency proceedings, and employment litigation.
Daniel Watkins
Founding Partner, Watkins Firm
Extensive Employment Defense Experience
A Business Litigation and Employer Defense Attorney Who Understands the People and Companies He Represents
Dan’s employer-defense experience spans businesses across healthcare and medical practices, high technology and science, construction, hospitality, real estate, manufacturing, and other commercial industries. That breadth of experience gives him an understanding of how employment problems arise within very different businesses, workforces, management structures, and operating environments.
Each employer operates within its own business realities, workforce structure, management practices, regulatory environment, and financial pressures. Understanding those differences matters when evaluating an employee problem, advising an employer about an important workplace decision, or defending the business when a dispute develops.
Working with employers across these industries has given Dan insight into how different businesses manage their workforces, how employment decisions are made and documented, how workplace problems develop, and how an internal employee issue can become a significant dispute.
That breadth becomes especially important when an employment dispute involves complicated records, conflicting accounts of what happened, decisions made by multiple managers or supervisors, industry-specific workplace practices, or potential consequences that extend beyond a single employee.
Litigation, Hearing, Class Action, and Trial Experience
A Trusted Litigation Defense Strategist and True Trial Attorney
Dan is a trusted litigation strategist and true trial attorney with more than 50 jury and bench trials to his credit. His experience includes significant employment cases that have attracted national attention, as well as the representation of local, regional, and national companies in complex employment disputes throughout San Diego, California and the U.S. That experience gives employers something increasingly uncommon: an attorney who can work strategically toward an effective resolution while possessing the courtroom experience to take the case to trial when necessary.
Dan doesn’t believe in needlessly aggressive litigation however he also doesn’t believe there is a case that can’t be won. There is always a way.
He has won numerous cases experts said couldn’t be won. Dan and his team pride themself in looking at employment defense cases differently than most attorneys. Clients value Dan’s ability to listen carefully, understand complex challenges, and develop practical, effective solutions to difficult legal problems.
His litigation experience includes Employer Defense, Healthcare Compliance, Commercial Litigation, Unfair Business Practices, Fraud, Breach of Contract, Battery, Premises Liability, Product Defect, Medical Malpractice, Discrimination, Sexual Harassment, Construction Defect, Unfair Competition, Defamation, and Trade Secrets.
Dan has also spent nearly four decades working with, for, and against some of the largest insurance companies in the country.
Demonstrated Experience
Significant Litigation and Investigative Work
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Municipal and Corporate Investigations
Dan has also been asked by some of California’s largest municipalities and corporations to conduct legally required investigations into matters involving alleged employment discrimination and harassment.
The Firm Dan Built
More Than Three Decades of Solutions-Based Representation
When Dan founded the Watkins Firm, he began building a team of attorneys and staff who could learn from one another and share a commitment to the clients they serve.
Over nearly 40 years, the firm has become a long-standing San Diego employment and employer defense institution.
Dan and his team believe they have a responsibility to continue the firm’s tradition of solutions-based representation. They work to understand their clients, care about the businesses and people they represent, and develop practical solutions to difficult legal problems.
Why It Matters
What This Experience Means for Your Business Dispute
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Experienced Judgment Across Decades of Business and Litigation
Dan’s practice since 1987 has involved complex transactions, ownership disputes, fraud allegations, commercial litigation, employment matters, and other consequential business issues.
His experience provides perspective when the facts are complicated, the financial consequences are substantial, or the opposing parties strongly disagree about what occurred.
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Resolution Focused, but Prepared to Litigate
An employment dispute should not become prolonged litigation simply because litigation is available.
The Watkins Firm evaluates the evidence, damages, risks, and objectives of the client and pursues opportunities for productive resolution when appropriate.
When negotiation or mediation cannot produce an acceptable result, Dan and his team have the litigation and trial experience necessary to continue pursuing the matter.
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Experience Turning Complicated Facts Into a Coherent Case
Employment disputes, especially PAGA cases, can involve years of records, timekeeping and payroll data, contracts, emails, representations, and conflicting explanations.
The firm works to establish the chronology, identify the relevant evidence, understand the damages, and develop a clear explanation of what happened and why it matters.
A case that can be clearly understood is generally in a stronger position to be evaluated, negotiated, mediated, litigated, or tried, and WON.
The Ultimate Question
Why Should You Hire the Watkins Firm?
Because the objective is not to make your employment dispute larger than it needs to be.
It is to understand what happened, identify what is at stake, evaluate the available options, and develop a strategy designed to protect your interests, mitigate or remediate entirely any potential damages, protect your interests, and accomplish your objectives.
Dan’s decades of employer defense and trial experience have taught him when a dispute may be resolved—and when being prepared to try the case becomes essential to achieving the best available outcome.
Your employment defense matter begins with a substantive conversation. We invite you to speak with the Watkins Firm about your situation, your concerns, and what you hope to accomplish.
Reviewed and approved by Daniel Watkins, Founding Partner, Watkins Firm.
Call 858-535-1511 for a Free Consultation
Begin with a Conversation
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