Retaliation for Reporting Workplace Violations

RetaliationRetaliation in the workplace. California workers are entitled to certain  protected rights. When they are violated, workers may report those violations to the Division of Labor Standards Enforcement (DLSE) to seek reparations. Unfortunately, sometimes employers do not appreciate this reporting, and seek retribution against reporting employees. When that happens, aggressive legal representation can make the difference to the success of your case.

Keep in Mind

Anyone can file a complaint, regardless of immigration status, language, or identification. All workers are protected under California law, and the Labor Commissioner’s office has no interest in your immigration status; nor will they report on immigration issues to other agencies.

Protected Activities

There are specific activities that are protected under California law. Those include:

  • Refusing to work when conditions are not safe, or making complaints about those conditions to bosses, labor unions, or government agencies;
  • Filing a wage claim against employers who do not pay earned wages;
  • Assisting in an investigation or testifying on behalf of co-workers’ claims;
  • Refusing to sign agreements promising not to file claims or divulge information regarding safety conditions in the workplace;
  • Using sick leave to deal with family or domestic partner illnesses;
  • Requesting time and private space to pump breast milk;
  • Taking time off to deal with domestic violence or sexual assault issues relating to yourself of your children.

Possible Examples of Employer Retaliation

Employers may express their displeasure with you for reporting your concerns in a number of unlawful retaliatory manners:

  • Termination;
  • Suspension;
  • Transfer or demotion;
  • Pay or hour deductions;
  • Threats or disciplinary action.

California’s Whistleblower Laws and Retaliation

A whistleblower is defined as a person who reports a reasonable belief that an employer is in violation of state or federal laws or regulations, or who believes that unsafe work practices or working conditions put employees at risk.  California Labor Code Section 1102.5 protects whistleblowers from retaliations and requires employers to reinstate any wage or benefit reductions that may have occurred due to retaliation.

Evidence that Engaging in Protected Activity Resulted in Retaliation

Demonstrating a causal connection between your activity and the employer’s unlawful retribution will be important in exonerating you. That connection may be shown in a number of ways:

  • By looking at the time frame in which protected activity and disciplinary action occurred;
  • By examining written and verbal communications made by your employer;
  • By comparing the treatment of employees who engaged in protected activity with the treatment of employees who did not engage in such activity.

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Is Workplace Retaliation Impeding Your Career Path?

Workplace RetaliationDo you feel that not getting promotions at work is because of workplace retaliation? Suppose you are a high-ranking individual with your company and a heavy decision looms before you and your management team. You hold many discussions, and ultimately, you disagree with the direction chosen by your immediate supervisor and the rest of the team. Fair enough. The majority rules, and what is done is done. Or is it?

Fast-forward a few years. Your management peers have moved up in the company, leaving you behind. You cannot prove it, but you have the sinking feeling that your career stagnation is a direct result of your stance in that meeting back in the day. In retribution for speaking your mind, you have been sidelined.

Alleged Workplace Retaliation – LAPD Captain Whittingham

Your situation may not be unlike that of LAPD Police Captain Peter Whittingham. The once-successful captain on an upward trajectory found five years with no promotions unsettling, to say the least. In 2014, Whittingham filed a lawsuit against the LAPD alleging workplace retaliation and discrimination. The courts now must weigh the evidence and determine the legitimacy of Whittingham’s workplace retaliation claim.

What Constitutes Unlawful Workplace Retaliation?

Workplace Retaliation may mean promotions passing you by. But that is only one of many ways in which employers may unlawfully express their dissatisfaction with you. Other common examples include:

  • Demotion, suspension, refusal to hire, reduction in hours;
  • Threats, unjustified negative evaluations, unjustified surveillance;
  • Any other action designed to deter individuals from pursuing their rights.

Legal Response to Workplace Retaliation

The US Equal Employment Opportunity Commission (EEOC) is tasked with holding employers accountable when they retaliate against employees. Whether the retaliation is in response to an employee complaint of some kind, or, as in Whittingham’s case, a response to differing management tactics, it is unlawful and subject to legal remedy.

Additionally, the California Division of Labor Standards Enforcement (DLSE) allows employees, as well as applicants for employment, to file to file a complaint when they believe they have experienced retaliation for lawful activities.  Your employer cannot legally punish you for sharing information with the DLSE.  It is a protected activity, and employers may not discipline employees for answering questions or filing complaints with government agencies.

Proving Workplace Retaliation Causation

Proving that your employer took action against you as retaliation is held to the “but-for-causation” standard. This means that you are responsible for drawing a clear line between the protected activity and the employer response. Your employer will doubtlessly contend otherwise; it is up to you to undermine your employer’s rationale for unlawful actions. [Read more…]

California Job Retaliation and Wrongful Termination Laws

job retaliation, wrongful terminationCalifornia job retaliation and wrongful termination laws. Under California state law, it is illegal for an employer to retaliate against any employee who has provided information to law enforcement or government agencies, or engages in other protected activities. Employment retaliation can take a variety of forms including an employer’s decision to demote, terminate, fire or conduct some other negative act against an employee because that employee has exercised an activity protected by federal or state law. Most often employment retaliation occurs when an employee becomes a whistleblower by reporting an employer’s activities that are in violation or public policy or law, or is otherwise considered illegal. Under the California Labor Code, an employer is prohibited from taking any adverse, negative action, or any other form of discrimination in response to an employee:

  • Reporting discriminatory acts and other illegal activity that have occurred in a workplace controlled by the employer;
  • Participating in a labor union and other activities related to collective bargaining and/or an employee’s right to freedom of association and expression;
  • Complaining about the state of the workplace facilities and/or working conditions;
  • Participating in investigations and/or filing suit against an employer;
  • Filing a complaint against an employer with California’s Division of Labor Standards and Enforcement (DLSE).

CA Law Regarding Job Retaliation and Wrongful Termination

The most common form of employer retaliation is the wrongful termination of an employee who has engaged in activities protected by the federal and state government. Here in California, employment relationships are presumed to be at will, which means that the employment relationship can be terminated by both the employer and employee at any time without the consent of the other party. However, there does exist an exception to the at-will employment presumption, which provides that employers can be found guilty of wrongfully terminating an employee when that employee has been discharged for “performing an act that public policy would encourage or for refusing to do something that public policy would condemn.” Under this exception, a California employee who is discharged because of these reasons can bring suit against the employer in order to receive damages and compensation for the wrongful discharge. However, this exception does not apply when the parties have a pre-existing employment contract that allows employment termination based on cause or because of specific reasons previously outlined in the employment contract.

An employee can bring a wrongful termination claim by asserting that the employment discharge violated federal law, public policy or California state law. Typically, wrongful termination suits are brought under the California Fair Employment and Housing Act (FEHA), which allows employees to bring suits against employers. However, the FEHA cannot be used to bring suit against an organization’s managers, supervisors and other employees. A complaint alleging discrimination or retaliation in the workplace must be filed within six months following the occurrence of the alleged activities. However, complaints filed under California Labor Code section 230.1 and 230 (c) can be filed within one year following the alleged retaliation or discrimination. Complaints of employment retaliation and discrimination are filed with the DLSE.

If you believe you have been the victim of employment retaliation or discrimination you should contact one of the labor and employment attorneys here at Beck Law P.C. here in Santa Rosa, California today.

Understanding California Employment Retaliation Laws

Employer Employee ConflictEmployment retaliation occurs when an employee is fired, demoted, or faces any other negative employment consequence, after the employee exercises a right protected under federal, state or local law. Common forms that employment retaliation can take include firing, demoting or taking any adverse action against an employee because that employee has:

  • Reported or threatened to report any illegal activities of an employer;
  • Filed or participated in a civil suit and/or investigation of an employer;
  • Participated in labor union or similar activities that involve the employee’s right to free association and expression;
  • Complained about employment conditions; and/or
  • Filed a complaint against the employer with the California Division of Labor Standards Enforcement Division.

California Laws and Protection Against Employer Retaliation

In California, there are an assortment of employment laws in place that provide employees with protection from retaliation in the workplace. The most important is the California Labor Code, which outlines the protected activities that employees can engage in without fear of retaliation. The Code also outlines prohibited employer activities that will be deemed employment retaliation if proven. These prohibited employer activities include:

  • An employer cannot retaliate against an employee, nor adopt, create, enforce any regulation, rule or policy that prevents or prohibits an employee from disclosing information to the government and/or law enforcement agencies, when the employee has reasonable cause to believe that the information will disclose a violation of or noncompliance with federal and/or state rules, regulations and/or statutes;
  • An employer cannot retaliate against an employee who refuses to participate in any activity that would result in a violation or noncompliance with federal and/or state statutes, regulations and/or rules; and
  • An employer cannot retaliate against an employee who has exercised their rights in any former employment.

Employment Retaliation Investigations

The California Retaliation Complaint Unit is the agency that investigates complaints of employer retaliation. Furthermore, all employees in California have the right to discuss the difficulties they have been facing in the workplace with the California Labor Commissioner Office, and with any other law enforcement or government agency. If you chose to do so, your employer cannot suspend, discipline, demote or fire you because you have provided information to these state agencies.

An employment retaliation complaint can be filed against employers, employment organizations, labor unions and trade organization. Employment retaliation complaints must be filed with California’s Division of Labor Standards Enforcement (DLSE). An employment retaliation complaint must be filed within six months following the occurrence of the alleged retaliatory act. However, complaints can be filed within one year of occurrence for complaints filed under Labor Code sections 230(c) and 230.1, within two years for complaints brought under section 1197.5, and no later than 90 days after the occurrence of actions filed under section 1596.88 of the California Health and Safety Code.

If you feel that you have experienced employment retaliation in the workplace in Sonoma County, Mendocino County or Lake County California and would like to exercise your rights, Contact the employment and labor law attorneys here at Beck Law P.C.

Ensuring Compliance with New Changes to California Employment Law Regarding Retaliation Related to Immigration Status

Retaliation Road SignRetaliation related to immigration status. In June of this year, California Governor Jerry Brown signed into law Assembly Bill No. 2751 (“AB 2751”), which provided updates and clarification to AB 263, a California law that, among other things, prohibits employers in Santa Rosa and all of California from retaliating against employees who wish to exercise their rights under the California labor laws. AB 2751, which specifically addresses employer retaliation against employees on the basis of immigration status, will take effect on January 1, 2015.

Current California Law on Retaliation in Employment

Currently, California law already protects employees from discrimination or retaliation by employers if the employee engages in protected activity.  Protected activity under California law includes:

  • Filing a claim or informing your employer of your intent to file a claim with the Labor Commission;
  • Complaining about unsafe work conditions or practices;
  • Discussing your wages or complaining about non-payment of wages; and
  • Taking time off from work for jury duty.

Employees who engage in protected activity and suffer an adverse action from their employer for doing so, such as termination of their employment, are entitled to be reinstated and to receive payment for lost wages.

Updates to California Employment Law and Immigration-Related Retaliation

AB 263, which took effect January 1, 2014, specifically prohibits employers from threatening to take or taking adverse actions against an employee with regard to immigration status if the employee engages in protected activity.  These “unfair immigration-related practices” include:

  • Threatening to contact immigration authorities;
  • Requiring an employee to produce documents that are not required under current law for work authorization purposes;
  • Rejecting employee documents that appear to be genuine; and
  • Misuse of the E-Verify system.

For example, if an employee complains about nonpayment of wages and the employer subsequently threatens to call immigration authorities on the employee, the employee may seek an employment attorney to determine if they may to enforce their rights under California law.

AB 2751 specifically updates AB 263’s definition of unfair immigration-related practices. As of January 1, 2015, unfair immigration-related practices will include threatening to file or filing a false report or complaint with any state agency as an unfair immigration-related practice.

Under AB 263, employers who engage in unfair immigration-related practices may lose their business licenses and be required to pay a $10,000 fine for each violation. AB 2751 clarifies that the proceeds of the penalty will go to the employee who was retaliated against by the employer.

Northern California Employment Attorneys

Due to these recent changes in California labor law and the upcoming implementation of AB 2751, employers in Santa Rosa may wish to review and update their handbooks, policies and training materials to ensure that they are in compliance with the changes. Employees who believe their rights under the new laws may have been violated should consult with an experienced employment attorney. The attorneys at Beck Law, P.C. have experience counseling both employees and employers. Contact us today to discuss your employment-related legal needs.


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