When Your Employer Makes Threats During a Dispute
“If you file a claim, we’ll contest your unemployment.” “We’ll make sure no one in this industry hires you.” “We’ll tell your next employer exactly why you were fired.” The threats are designed to make you back down. Some of them are lawful. Some are not. And some — regardless of their legality — are evidence.
An employer facing a legal claim — or an employee who is about to assert one — often resorts to threats. The threats serve a single purpose: to increase the perceived cost of action until the employee decides the cost is too high. The threats are delivered in meetings, in phone calls, through attorneys, and sometimes through coworkers who relay the message informally.
Understanding which threats are lawful, which are unlawful, and which are evidence — regardless of their legality — helps the employee evaluate the threat for what it is and respond accordingly.
Threats that are unlawful
Threats to immigration status. An employer that threatens to report an employee’s immigration status to authorities — in response to a wage claim, a discrimination complaint, or any exercise of legal rights — has violated Labor Code sections 1019 and 1024.6. The threat itself is the violation. It does not need to be carried out.
Threats to retaliate for filing a complaint. An employer that says “if you go to the CRD, you’ll regret it” has threatened retaliation for the exercise of a protected right. The threat violates FEHA’s anti-retaliation provision and may constitute an independent adverse action under the Yanowitz standard — conduct reasonably likely to deter the employee from engaging in protected activity.
Threats to provide a false reference. An employer that threatens to give a deliberately false negative reference — to punish the employee for filing a claim — has threatened defamation and blacklisting. Labor Code section 1050 prohibits employers from preventing or attempting to prevent a former employee from obtaining new employment through misrepresentation.
Threats to file a retaliatory lawsuit. As described in the anti-SLAPP article, an employer that threatens to sue an employee for exercising their legal rights is engaging in a form of intimidation that the anti-SLAPP statute is designed to address. The threat is retaliation. The lawsuit, if filed, may be stricken.
Threats that are lawful but revealing
“We will contest your unemployment.” The employer has the right to contest an unemployment claim — this is not unlawful. But the timing of the threat — made in the context of discouraging a legal claim — is evidence. It reveals the employer’s willingness to use every available tool to pressure the employee, and it may support a narrative of retaliatory intent.
“We will enforce your non-compete.” In California, non-compete agreements are void. The employer’s threat to enforce a void agreement reveals either ignorance of the law or a willingness to use empty threats as intimidation. Either way, the threat has no legal force — but it is evidence of the employer’s posture.
“Our lawyers will make this very expensive for you.” The employer has the right to defend aggressively. But a threat designed to deter the employee from pursuing a valid claim — by emphasizing the cost of litigation rather than the merits of the defense — is revealing. It suggests the employer is concerned about the merits and is relying on financial pressure to resolve the dispute in its favor.
Why threats are evidence
Every threat the employer makes — lawful or unlawful — is evidence of the employer’s state of mind. An employer that threatens an employee who has filed a discrimination complaint is demonstrating hostility toward the complaint. An employer that threatens consequences for the exercise of legal rights is demonstrating the retaliatory intent that the law prohibits.
The threats should be preserved. If they are made in writing — in emails, text messages, or letters — they should be saved. If they are made verbally, they should be documented immediately: what was said, by whom, when, and in what context.
In litigation, the threats become exhibits. A jury that sees an email from the employer’s manager saying “if she files a claim, we’ll make sure she never works in this town again” does not need much additional evidence to conclude that the employer’s conduct was retaliatory. The threat tells the story the employer would prefer to keep hidden.
What to do when threatened
Do not engage emotionally. The threat is designed to provoke — to make you angry, to make you afraid, to make you react in a way the employer can use against you. Respond calmly, or do not respond at all.
Preserve the threat. Save the email. Screenshot the text. Write down the verbal statement. The threat is evidence, and evidence must be preserved.
Do not back down. The purpose of the threat is to make you stop. If you stop, the threat has succeeded. If you proceed — with an attorney, through the proper channels, with documentation — the threat has failed, and it has created evidence that strengthens your case.
Consult with an attorney. An attorney can evaluate whether the threat is unlawful (and therefore independently actionable), whether it strengthens your existing claims, and how to respond in a way that protects your interests.
If your employer threatens you during a dispute — threatens your immigration status, your unemployment claim, your references, your career — the threat is either unlawful (and independently actionable) or it is evidence of the retaliatory intent that supports your existing claims. Either way, the appropriate response is not to back down. It is to preserve the threat, consult with an attorney, and proceed.
This article is general information about California law and is not legal advice. Every situation turns on its particular facts.