Workplace retaliation, while unfair and stressful for an employee, can be difficult to protect against. The important thing to know is that while the law can’t prevent employers from retaliating against their employees, it can offer restitution should you fall victim to retaliation.

Knowing how to look out for workplace retaliation can help you seek restitution a. Retaliation can come in many forms and can be the result of several different types of issues reported.

Oftentimes the employee will first report issues such as sexual harassment, unsafe working conditions, workers compensation claims, another employee breaking company policy or even broken laws. These employees can also be known as Whistleblowers. Most commonly, discrimination is reported as it relates to an employee’s age, race, gender, sexual orientation, religion, or disability.

As unfortunate as retaliation is, it can be administered in many different ways. Employers have been known to cut hours or pay, pass employees over for promotions, place people on unpaid administrative leave, and even terminate employment. Termination in retaliation for reporting any of the previously mentioned issues would likely be considered a wrongful termination.

It’s also interesting to note that even though there might only be one person, perhaps your manager, giving you a hard time or retaliating against you, under the law the company is still liable for that person’s actions. In 1998, the California Supreme Court ruled that individual managers and supervisors can’t be held personally liable for retaliation. However, the California Fair Employment and Housing Act says that it is unlawful for “any employer, labor organization, employment agency or person” to engage in retaliation.

If you have recently reported some type of illegal or improper activity within the company and your working environment or conditions have been adversely affected, you should seek counsel of an experienced San Francisco labor law attorney. An experienced attorney can help you understand the legal aspects of your situation as well as offer guidance in seeking recompense.

Call us today (415) 230-2755 to learn more about fighting workplace retaliation.

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The Division of Labor Standards Enforcement also known as the Labor Commissioners Office is a crucial part of the Industrial Relations Department. It is the department tasked with the responsibility of investigating all worker retaliation claims. It is also in charge of enforcing labor standards in the state of California to ensure that workers do not work under conditions that are substandard or unlawful.

Before delving into the process of filing a retaliation claim, there are a few facts that you ought to understand:

– You do not require the services of a lawyer when filing this complaint. An interpreter will also be provided in case you are not conversant with the English language.

– Any worker can file a complaint with the commissioner’s office regardless of whether they are in the country legally or illegally.

– You will not need a photo ID or social security number to file your complaint.

How Do You File a Retaliation Complaint?

The RCI (Retaliation Complaint Investigation Unit) is in charge of investigating all employer retaliatory complaints made by their employees. Retaliation can be in the form of reduced working hours or dismissal after an employee has spoken out for ill-treatment at work.

Be Prepared to Submit Your Filing

Before you can file, you need to check whether the deadline has passed. Normally, you are required to file within six months after this act has been performed. Understand that even if you miss the six-month deadline set by the Labor Commissioner, you can still file a private lawsuit.

Preparation involves gathering documents that detail the action taken by the employer. Aim to show that you do not have prior cases of misconduct and that you were within your labor rights when the action was taken.

File Your Complaint

Obtain the Retaliation Complaint form and fill all the details. You can get the form from the website or the Labor Commissioner’s offices closest to you. Normally, it is recommended that people visiting the offices for the first time bring their own interpreters. An interpreter will then be provided on subsequent visits after the form has been submitted.

Once submitted, the complaint will be reviewed and a decision made on whether or not to investigate your employer. A notice will be sent to you to communicate the Office’s decision.

Be Cooperative

If an investigation is commissioned, your assigned investigator will most likely take some of the following actions:

• Interview both parties
• Interview witness that could have witnessed the retaliation act
• Make a visit to the worksite to check for possible evidence
• Issue your employer with subpoenas to furnish documents related to your complaint
• Make a request that both parties have a sit-down to discuss a possible settlement

Go to a Settlement Hearing or Conference

In the event that a settlement hearing is set by this office, both parties will need to make an appearance. Here, questions will be raised about the complaint, and the possibility of a settlement discussed.

If the conference is not successful, a hearing date is then set. For the hearing, you can bring your union rep or attorney. The hearing officer will then make their recommendations based on the evidence provided.

Know All the Likely Outcomes

A written decision will be sent to your address to inform you of the outcome reached during the settlement hearing. This could include:

• Receive pay for the lost wages
• Be reinstated to the previous position
• Enter into an agreement to refrain from retaliatory acts in the future

If a decision is entered in your favor, the employers will normally have a maximum of ten days to either comply or appeal that decision.

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Employer Retaliation is Illegal

One major problem with respect to California workplace rights is employer retaliation. Retaliating against an employee in California is against the law if the employer does so for protected employee activity. Protected activity under state laws creates specific safeguards for workers who make a report about activity which the employee believes to be illegal. If an employee makes a legitimate complaint or reports what the employee reasonably believes to be illegal activity, it is against California Labor Laws for an employer to retaliate against an employee who discloses information to law enforcement agencies. It is also a violation of state labor laws to retaliate against an employee because the worker won’t break the law. The penalties for retaliation in California can be extreme, sometimes including fines of up to $10,000 per retaliatory act.

Protected Employee Activity 

Here is a list of the types of activities that are protected from retaliation in California:

Filing a claim with the Labor Commissioner

Filing an Occupational Safety and Health Administration (OSHA) complaint Disclosing information to a government or law enforcement agency

Filing a Discrimination Claim or harassment claim

Serving on a jury

Pregnancy & Disability Discrimination Laws

Another major problem in the workplace is discrimination based on pregnancy and disabilities. California enacted the FEHA to protect the rights of all workers in the state to seek, obtain, and hold employment without discrimination on account of various characteristics. Some of the protected classes of discrimination include race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, and sexual orientation. The California Government Code permits employees to file civil lawsuits for damages when employers violate the Fair Employment and Housing Act. When a female worker is unable to work as a result of pregnancy disability, childbirth or other related conditions, the employer is obligated to treat the employee the same as though the employee has any other disability. This involves making reasonable accommodations for pregnant workers.

Furthermore, there are two statutory schemes that allow pregnant employees to leave work to deal with the pregnancy and return to their job – Family Medical Leave and Pregnancy Disability Leave. The federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) deal with employers that discriminate against disabled workers. A disability for purposes of California Discrimination laws includes a physical or mental impairment that limits one or more of the major life activities. An employer that violates disability laws can face significant and overwhelming penalties. The Americans with Disabilities Act of 1990 provides disabled workers with a way of recovering damages by way of a government enforcement action when they have been unlawfully denied an employment opportunity due to the disability even though the employee was equally qualified.

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Retaliation is a serious matter to the Department of Labor. As an employee of the State of California, you have the right to speak with the representatives of the California Labor Commissioner’s office or any other government or law enforcement agency on any issues affecting your working conditions.

Your employer can not dismiss, lower, suspend or discipline you for answering any questions or providing any information to a government agency.

For Employers

In the State of California, it is unlawful to retaliate against any employee who provides information to the government or law enforcement agency where the employee has reasonable grounds to believe that the information discloses violation or noncompliance with state or federal law, regulation, or retaliation, you can’t fire, lower, suspend or discipline any employee who engages in this protected activity.

What is in section 1102.5 of the California Labor Code, subsections (a) – (i)?

(A) The employer or any person acting on behalf of the employer in retaliation complaint should not accept, adopt or apply any rule, regulation or policy prohibiting an employee from disclosing information to the government or law enforcement agency to a person with authority over an employee or other employee who has Powers to investigate, detect or correct a violation or noncompliance, or provide information or testify to any government agency conducting the investigation, listen of inquiry or, if the employee has reasonable that the information discloses a violation of state or federal law, violation or noncompliance with local, state or federal rule or regulation, regardless of whether the disclosure is part of the employee’s official duties.

(B) The employer or any person acting on behalf of the employer can not retaliate against the employee for disclosing information, or because the employer believes that the employee disclosed or can disclose information to a government or law enforcement authority.

A person with authority over an employee or other employee who has the right to investigate, detect or correct a violation or noncompliance, or to provide information or to give evidence earlier to any government agency conducting p Investigation, hearing or inquiry if the employee has reasonable grounds to believe that the information discloses a violation of a state or federal law, a violation or noncompliance with a local, state or federal rule or regulation, regardless of whether disclosure is part of the employee’s official duties.

(C) The employer or any person acting on behalf of the employer does not compensate the employee for refusal to participate in activities that would lead to a violation of a state or federal law or to the violation or noncompliance with a local, state or federal rule or regulation.

(D) The employer or any person acting on behalf of the employer does not reimburse the employee for exercising his rights under subsection (a), (b) or (c) under any previous employment.

(E) A report made by a government official to his employer is the disclosure of information to the government or law enforcement agency in accordance with subparagraphs (a) and (b).

(F) In addition to other fines, an employer who is a corporation or a limited liability company is liable for a civil fine not exceeding ten thousand dollars ($ 10,000) for each violation of this section.

(G) This section does not apply to rules, rules or policies that either implement the actions of employers against employees who violate the confidentiality of the privilege of a lawyer and a client under Article 3 (beginning with Section 950) or a physician-the strategic privilege of Article 6 From Section 990) of Chapter 4 of Section 8 of the Evidence Code or commercial secret information.

(H) The employer or the person acting on behalf of the employer does not reimburse the employee since the employee is a member of the family of the person who is supposed to have any activities protected by this section.

(I) For the purposes of this section, the “employer” or “the person acting on behalf of the employer” includes, but is not limited to, the employer of the client as defined in subparagraph (a) of section 2810.3 (1) and the employer specified in subsection (b) Section 6400.

Retaliation should be addressed and subsequently dealt with immediately for the best results.

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Employees and people for the career who go through retaliation or discrimination because they take part in an activity covered by any legislations under the jurisdiction of the Labor Commissioner may record a grievance with the Department of Labor Requirements Enforcement (DLSE). This brochure explains the procedures accompanied by the Labor Commissioner under Labor Code section 98.7 for considering these retaliation and discrimination problems.

Filling the Complaint

A worker or job candidate alleging retaliation or discrimination in violation of any regulation under the jurisdiction of the Labor Commissioner must record a grievance with the DLSE within half a year of the undesirable action. Adverse activities include unlawful release, demotion, suspension, a decrease in pay or time, refusal to employ or promote, etc. There are many exclusions to the 6-month deadline: an issue alleging retaliation or discrimination against patients of domestic assault or erotic assault (Labor Code section 230(c) or 230.1) must be registered within twelve months of the alleged violation; a problem to be paid significantly less than a worker of the contrary love-making doing the same work (Labor Code section 1197.5) must be submitted within 2 yrs of the alleged violation; and a grievance alleging retaliation or discrimination for complaining about violation of licensing or other laws and regulations associated with child day health care facilities (Health Insurance and Protection Code section 1596.881) must be submitted no later than 3 months after the undesirable action.

Make sure to sign and time the grievance form. Copies of any helping documents should be mounted on the grievance form. Usually do not send originals, as they might be lost.

After the problem is submitted, the problem will be analyzed to verify that the DLSE has jurisdiction over the precise complaint. If it’s discovered that the issue comes under the jurisdiction of the Labor Commissioner, it’ll be designated to a Retaliation Issue Investigator (RCI) for analysis.

Filing a problem with the Labor Commissioner will not prevent you from submitting an exclusive lawsuit.

Any worker or job candidate alleging retaliation for having complained about work environment health or safeness issues gets the right to document a concurrent problem with National OSHA within thirty days of the event of the negative action.

The Investigation

After submitting the problem, the staff or job candidate will be approached with an RCI investigator who’ll conduct a study. The investigator will contact the workplace and any witnesses with information about the alleged discrimination or retaliation. If appropriate, the investigator may ask the people meet to explore the likelihood of arrangement. The co-operation of both celebrations is vital to ensure all available fact is uncovered in the inspection. Investigators hold the authority to concern subpoenas to acquire data related to the situation.

Once the inspection is complete, if no negotiation is come to, the investigator will make a written brief summary of conclusions and frontward those documents to the Labor Commissioner.

The Determination

The Labor Commissioner will review the brief summary of conclusions and make a conviction. In case the Labor Commissioner locates the workplace violated regulations by retaliating or discriminating resistant to the staff or job candidate, the company will get ten times to either document an appeal or even to adhere to the dedication to cure the retaliation or discrimination. In case the employer does not comply, a legal professional for the Labor Commissioner will record a courtroom action to enforce the conviction.

The Hearing

The hearing can be a casual, investigative proceeding to obtain additional facts highly relevant to the truth. At least five days and nights before the appointed hearing, the workplace and worker or job candidate will each get a backup of the conclusion of findings made by the investigator formulated with the facts she or he found through the investigation. Either aspect may bring a lawyer, union consultant or another person of choice to signify them at the ability to hear.

Appeal Rights

Either get together may seek an overview of the Labor Commissioner’s perseverance by submitting a charm with the Director of the Team of Industrial Relationships within ten (10) days and nights of the time frame of service. The charm shall define the lands after that you’re appealing get together considers the willpower to be unjust or unlawful, and every concern to be looked at by the Director.

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Over the years, retaliation lawsuits and charges have been increasing steadily resulting from an employee being demoted, fired, or facing any other negative/adverse employment consequence. In light of this, it is obligatory for all employees to understand what kind of employee actions are protected under California law.

Forms and Causes of Employment Retaliation in California

As stated in the introductory section, employee retaliation cases have been on the rise for the past few years. Some of the notable forms of retaliation include demoting, firing, or adverse actions taken against an employee. These cases are often caused by any of the following events:

• Reporting or threatening to report an illegal activity/actions of an employer
• Participating in the labor union, most of which involve the right of an employee to free expression and association
• Participating or filling in an investigation of an employer
• Filing a complaint with the California Division of Labor Standards Enforcement Division against an employer
• Complaining about employment or working conditions

What do California’s Laws and Protection Say Against Employee Retaliation?

In California, several employment laws have been enacted to protect workers from retaliation in their workplace. The California Labor Code is one of the most important, which outlines the protected actions that workers can engage in without fear of discrimination and retaliation.

This code also states prohibited actions of an employer that may be considered employment retaliation. Some of the employer prohibited activities include the following:

• An employer can’t retaliate against a worker who has implemented their rights in any formal employment
• An employer can’t retaliate against a worker, nor create, adopt, or enforce any rule, policy, or regulation that prohibits or prevents a worker from disclosing crucial information to the state, government, and law enforcement agencies

What Does the Law Outline About Retaliation Compensation?

California Labor Code (cap 132a) is the compensation provided for retaliation in employee’s compensation statute. The provision outlaws an employer from terminating or (in any form) discriminating against a worker because s/he has a workstation injury, filed an employee’s compensation claim, or has been awarded an employee compensation reward.

The statute further requires the employer to bear the burden of proving that the worker was not fired, demoted, or treated differently because of the workstation injury or employees’ compensation claim. Any worker filing section 132a of the Labor code can receive a compensation of up to 10,000 US dollars, reimbursements for wages lost, reinstatement, and other work benefits.

Are There Any Other California Employees’ Retaliation Statutes?

Yes. There are many other assortments of employment laws that protect workers from discrimination and retaliation in the workstation. It includes the following:

• Equal Pay Act
• Paid Sick Leave
• Filling an Hour or Wage Claim
• Among others

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