Retaliation in the Workplace in California
Despite the many legal protections in place to protect employees from wrongful termination, it is sometimes difficult to secure remedies for individuals who are not fired but face workplace retribution. Employees who are being punished at work may be able to get some help from the Fair Employment and Housing Act (FEHA) and California’s whistleblower laws.
Examples of Workplace Retaliation
Workplace retaliation can stem from a wide array of circumstances and scenarios. Here is a look at common forms of retaliation in the workplace.
Retaliation and the WHD
Dan works an average of 53 hours a week as a chef in a restaurant. He makes a secret call to the U.S. Department of Labor’s Wage and Hour Division (WHD) to ask about overtime compensation. He informs another cook that the WHD says the kitchen workers should be compensated for all overtime hours performed. Their boss overhears the conversation and dismisses Dan.
In this case, it would be against the law for Neil’s boss to punish him for talking to WHD.
Retaliation and a Nursing Mother
Patty works at a call center and recently gave birth to a newborn. She pumps breast milk at lunch, and it takes her a while to get everything sorted out before she can answer calls at her desk. When Patty comes back late from her lunch break, she is informed by her supervisor that she can no longer use lunch breaks to attend to “personal stuff.” Later in the day, Patty begs for another pumping break, and her supervisor dismisses her from work without pay.
In this case, Patty tried to use her rights under the Fair Labor Standards Act, but her boss punished her for doing so.
Retaliation and the FMLA
When Suzy’s migraines became so severe that she could no longer perform her duties as a hotel desk clerk, she submitted a request for time off under the Family and Medical Leave Act. She took FMLA leave intermittently for two days in October and three days in November. A few months later, in April next year, Suzy experienced another severe migraine and used FMLA leave for another two days. When returning to work, Suzy’s new supervisor cut her hours in half, stating the hotel needed front desk workers who did not miss work, regardless of the reason for absences.
In this case, Suzy’s employer cut her hours illegally after she took FMLA leave. This is called retaliation and is against the law.
Retaliation and Whistleblower’s Rights
Section 1102.5 of the California Labor Code says that employers can’t retaliate against workers who:
- Go to the police or government to report their employer for wrongdoing.
- Tell a boss or another company official with investigative power about the employer’s alleged illegal or unethical behavior.
- Cooperate with or testify in a government agency’s investigation, trial, or query into their employer’s possible illegal behavior.
Labor Code 1102.5 is commonly referred to as a “whistleblower protection” statute. When an employee reports unlawful activities at their workplace, this whistleblower protection statute shields them from both termination and less severe types of reprisal.
If it turns out that your employer did not violate the law, you are still protected by this statute against retribution for whistleblowers. The only thing that counts is that you had a good-faith belief that your employer committed a violation.
Can You Sue a Company for Retaliation in California?
There are several steps you can take to seek relief from workplace retaliation.
The Civil Rights Department (CRD) should be your first stop if your employer retaliates against you for exercising your rights under the FEHA. Following the issuance of a “right to sue” notification by the CRD, you will be able to file a lawsuit against your employer for retaliation in the workplace.
You can contact the California Labor and Workplace Development Agency (CLWDA) and seek relief under Labor Code 1102.5 LC by filling out an online form. You must also send a certified letter to your employer notifying them of your request for retaliation relief under Labor Code 1102.5 LC. Once you fill out the request and file the notice, the CLWDA will decide whether to investigate your claim. If the agency chooses not to investigate, you can then file a lawsuit of your own accord.
Hire a San Diego Employment Lawyer
An employee might benefit from consulting The Law Office of John P. Martin to determine whether their rights have been infringed and if legal action is warranted. John is one of the San Diego employment lawyers who will make sure all other options have been tried first. This includes making sure the employee has accurately followed the procedures outlined in the company’s handbook for reporting discrimination, harassment, and retaliation. A San Diego employment attorney can also help an employee understand retaliation California labor code and statutes and how to use them to win a lawsuit in California.
