Employer Retaliation
Employer Retaliation
Retaliation under California law refers to adverse actions taken by an employer against an employee for engaging in legally protected activity. Adverse employment actions can take many forms including but not limited to:
- Termination or demotion
- Reduction in salary or hours
- Denial of promotions or advancement opportunities
- Negative performance evaluations that are not justified
- Increased scrutiny or micromanagement not applied to other employees
- Hostile work environment or behavior aimed at making the employee resign
There are also many forms of protected activity. For example, under California’s Fair Employment and Housing Act (FEHA) prohibits employers from retaliating against employees who:
- File a complaint or report with the employer or a government agency alleging racial discrimination, disability discrimination, sexual harassment, gender discrimination, sexual orientation discrimination, religious discrimination, age discrimination, or violation of other rights protected under FEHA.
- Participate in an investigation or a proceeding related to a claim of discrimination, harassment, or other violations protected under FEHA.
- Oppose acts or practices by the employer that are believed in good faith to be discriminatory or to violate FEHA.
There are also numerous Labor Code provisions that specifically prohibit retaliation against employees and job applicants, and set forth the types of protected activity employees may engage in.
1. Off-Duty Activities (Labor Code section 96(k)): Your job can’t be affected negatively because of things you legally do outside of work, like your hobbies or activism.
2. Speaking Up About Workplace Rights (Labor Code section 98.6): If you complain or even hint at complaining about workplace issues, start any legal action about your rights, or participate in such actions, your employer can’t retaliate against you. If they do, you could be entitled to a penalty of up to $10,000 for each time they violated this rule.
3. Jury Duty (Labor Code section 230(a)): Your job is safe if you need to take time off for jury duty, as long as you let your employer know in advance.
4. Court Appearances for Crime Victims (Labor Code section 230(b)): If you’re a victim of a crime and need to go to court, your employer can’t punish you for taking the time off.
5. Domestic Violence, Sexual Assault, and Stalking Victims (Labor Code section 230(c)): If you need time off to seek help or protection because you or your child are victims of domestic violence, sexual assault, or stalking, your employer must allow it.
6. Victim Status Protection (Labor Code section 230(e)): Your employer can’t discriminate against you for being a victim of domestic violence, sexual assault, or stalking, especially if you’ve told them or they’re otherwise aware.
7. Safety Accommodations (Labor Code section 230(f)): If you’re a victim of domestic violence, sexual assault, or stalking, your employer must make reasonable safety accommodations for you at work.
8. Extended Protections for Larger Employers (Labor Code section 230.1): Similar protections as above, but specifically for employees at larger companies (25 or more employees), including time off for medical attention, counseling, or safety planning.
9. Attending Crime-Related Judicial Proceedings (Labor Code section 230.2(b)): If you need to take time off to attend court for a crime you or a close one were a victim of, you’re protected.
10. Emergency Duty (Labor Code section 230.3): Volunteer emergency responders can take time off for emergencies without fear of losing their job.
11.Training for Emergency Responders (Labor Code section 230.4): If you’re a volunteer firefighter, peace officer, or emergency responder at a larger employer (50+ employees), you can take up to 14 days off per year for training.
12. Victims of Crimes (Labor Code section 230.5): If you’re a victim of certain crimes, you can take time off to attend court proceedings related to those crimes without being punished at work.
13. School Appearances (Labor Code section 230.7 and Education Code section 48900.1): Parents can take time off to appear at their child’s school when requested by the school.
14. School Activities (Labor Code section 230.8): If you’re a parent, guardian, or grandparent at a company with 25 or more employees, you can take time off for school activities, emergencies, or to find child care or schools.
15. Wage Discussions (Labor Code sections 232(a) and (b)): You’re allowed to talk about your wages openly without being forced to keep them secret or being punished for it.
16. Discussing Working Conditions (Labor Code section 232.5): You can freely talk about your work conditions without facing retaliation.
17. Sick Leave Use (Labor Code sections 233 and 234): Using your accrued sick leave is your right, and you can’t be punished for it. If your employer has a policy that penalizes you for this, it’s against the law.
18. Immigration Status Reporting (Labor Code section 244): It’s illegal for employers to retaliate against you by threatening to report your immigration status because you exercised your rights under the labor laws.
19. Paid Sick Leave (Labor Code sections 245-249): You have the right to use your paid sick leave, and there are strong protections and penalties for employers who retaliate against employees for using it.
20. Criminal History in Employment (Labor Code section 432.7): Employers can’t ask you about arrests that didn’t lead to a conviction, certain diversions, or juvenile records when you’re applying for a job.
21. Marijuana Convictions (Labor Code section 432.8): You don’t have to disclose old marijuana possession convictions when applying for jobs.
22. Pre-employment Questions about Convictions (Labor Code section 432.9): State or local agencies can’t ask about your conviction history until after they’ve determined you meet the minimum job qualifications.
23. Fair Workday Elections (Labor Code section 752): Employees in non-unionized smelters or underground mines have the right to a fair vote on workdays longer than eight hours. If this right is violated, a penalty may be applied for each affected employee.
24. Unfair Immigration Practices (Labor Code section 1019): This section protects against retaliation for engaging in activities covered by labor laws and local ordinances, including prohibitions against certain immigration-related practices by employers, like requesting unnecessary documents or misusing the E-Verify system.
25. Immigration Document Abuse (Labor Code section 1019.1): Employers cannot request more or different documents than required by federal immigration law, refuse to honor documents that seem genuine, or re-verify employment authorization unfairly. Violations can result in significant penalties.
26. Updating Personal Information (Labor Code section 1024.6): It’s unlawful for employers to retaliate against employees for legally updating their personal information, such as a change of name, social security number, or federal employment authorization document.
27. Rehabilitation Accommodation (Labor Code sections 1025-1028): Employers with 25 or more employees must provide reasonable accommodations for employees to participate in alcohol or drug rehabilitation programs.
28. Lactation Accommodation (Labor Code sections 1030-1033): Employees have the right to request accommodations for expressing breast milk and cannot be retaliated against for doing so. Employers must provide suitable space (not a bathroom) for lactation that is not overly disruptive to the workplace.
29. Adult Literacy Programs (Labor Code section 1041-1044): Employers regularly employing 25 or more employees must accommodate and assist employees who request help enrolling in adult literacy education programs.
30. Political Participation (Labor Code section 1101): Employers cannot make rules or policies that restrict employees’ political activities or affiliations outside of work.
31. Political Coercion (Labor Code section 1102): It’s prohibited for employers to coerce or attempt to influence employees’ political actions or activities.
32. Whistleblower Protection (Labor Code section 1102.5): Employees are protected against retaliation for disclosing information about violations of state or federal statutes, rules, or regulations to government or law enforcement agencies, or refusing to participate in activities that would result in such violations.
33. National Service Participation (Labor Code section 1171): Individuals participating in national service programs like AmeriCorps are protected when refusing to work overtime for legitimate reasons.
34. Equal Pay (Labor Code section 1197.5): Employees can file a claim if they are paid less than someone of the opposite sex, another race, or ethnicity for substantially similar work, unless the pay difference is based on a lawful reason. Retaliation for invoking or assisting with the enforcement of this law is prohibited.
35. Work Hours Limitation (Labor Code section 1198.3): Retaliation is prohibited against employees who refuse to work more hours than permitted by Industrial Welfare Commission Orders.
36. Protection for Minors (Labor Code section 1311.5): Individuals retaliated against for filing a claim or civil action alleging Labor Code violations as minors may seek triple damages, with an extended time limit for making claims.
37. Organ and Bone Marrow Donation Leave (Labor Code section 1512): Employees have the right to take paid leave for organ or bone marrow donation and are protected against retaliation for doing so.
38. E-Verify Misuse (Labor Code section 2814): Employers are restricted in their use of the E-Verify system to prevent discrimination and can face penalties for misuse.
39. Wage Garnishment Protection (Labor Code sections 2929(b) and (c)): Discrimination against employees for wage garnishment threats or actions is prohibited, with specific requirements for notifying employers and filing claims.
40. Protection Against Surveillance Reports (Labor Code section 2930): Employees disciplined or discharged based on a shopping investigator’s report without having seen the report are protected under this section.
41. Safety and Health Complaints (Labor Code section 6310): This section protects you if you speak out about unsafe or unhealthy conditions at work, start or help with a legal case about workplace safety, testify in such a case, or are part of a safety committee. It also protects family members of someone who has engaged in these protected activities.
42. Refusing Unsafe Work (Labor Code section 6311): You’re protected if you refuse to do a job that would break safety laws or put you or your coworkers in danger. This law ensures you can say no to unsafe work without fear of losing your job.
43. Hazardous Substances Complaints (Labor Code section 6399.7): If you complain or testify about your workplace not following the rules on hazardous substances, this section protects you. It’s about making sure workers can speak up about health risks without retaliation.
44. Patient Safety Concerns (Labor Code section 6403.5): Healthcare workers who refuse to move patients because it could be unsafe for the patient or the worker, or because the right equipment or trained team isn’t available, are protected under this law.
45. Child Day Care Facility Complaints (Health and Safety Code sections 1596.881 and 1596.882): If you work in child day care and report violations of laws (like staff-child ratios or transportation safety), start or contribute to a legal proceeding about these issues, testify in such a proceeding, or refuse to work because of these violations, you’re protected. You have specific timelines to report these violations to your employer and to the Division of Labor Standards Enforcement (DLSE).
46. Interacting with the EDD (Unemployment Insurance Code section 1237): This protection covers you if you seek information from the Employment Development Department (EDD) about your rights, cooperate with an EDD investigation, or testify in a proceeding related to the Unemployment Insurance Code or Labor Code.
As you can see, there are many types of protected activity in California. So, if you engage in any of these protected activities and your employer retaliates against you by demoting you, suspending you, terminating you, reducing your pay, or writing you up, please contact us immediately.