California offers substantial protections to employees from being retaliated against for exercising their workplace rights. These laws safeguard workers from facing retaliation by their employers when they participate in protected activities. These activities include reporting instances of discrimination or harassment, reporting illegal conduct or safety violations, seeking accommodations for a disability, and filing for workers compensation benefits.
We will summarize and discuss some of these protections in this article. Remember, this isn’t legal advice so if you have additional questions, contact an experienced employment or workers’ compensation law firm, like Gateway Pacific Law Group!
Anti-Retaliation Protections Under the California Fair Employment and Housing Act (FEHA)
California’s Fair Employment and Housing Act (FEHA) is one of the most comprehensive anti-discrimination laws in the country. It prohibits discrimination in employment and housing on the basis of a number of protected characteristics, including race, color, religion, national origin, ancestry, disability, sex (including pregnancy, childbirth, breastfeeding, and related medical conditions), gender identity, gender expression, sexual orientation, marital status, and age (40 and over).
The FEHA prohibits employers from retaliating against employees for engaging in the following protected activities:
- Opposing any act or practice made unlawful by the FEHA, or participating in any proceeding related to an FEHA violation.
- Requesting or receiving a reasonable accommodation for a disability or religious belief.
- Testifying or assisting in any proceeding under the FEHA.
Retaliation can take many forms, including demotions, pay cuts, negative performance evaluations, increased scrutiny (“over supervision”), and even termination.
If you believe that you have been discriminated against under the FEHA, there are a number of steps you can take to assert your rights:
Gather evidence. The more evidence you have to support your claim, the stronger your case will be. Some types of evidence that may be helpful include: Emails, text messages, or voicemails from the employer or landlord that show discrimination. Try to identify people will will provide you or your attorney witness statements. These people should have seen or heard or have personal knowledge about the discrimination, retaliation or harassment.
You also want to obtain documentation of your job performance or qualifications. You also want to obtain documentation of any adverse action taken against you, such as termination, demotion, or pay cut.
Then, contact an experienced employment law attorney, like Gateway Pacific Law Group! An employment law attorney can help you navigate the legal process and protect your rights. The law firm will assist you in filing a complaint or a right-to-sue letter with the California Department of Fair Employment and Housing (DFEH). The DFEH is a state agency that investigates and enforces the FEHA. You can file a complaint or request a right-to-sue letter online, by phone, or by mail.
Anti-Retaliation Protections for Employees Who Report Labor Code or Wage Violations
California Labor Code section 98.6 prohibits employers from retaliating against employees who report wage violations. This means that employers cannot fire, demote, or otherwise discipline employees for reporting violations of the law, such as being paid less than minimum wage or not being paid for overtime hours. The law protects employees who report violations to their employer, the Labor Commissioner, or any other government agency.
Retaliation for reporting wage violations can take many forms, including termination, demotion, pay cuts, and negative performance evaluations.
To prove a retaliation claim under Labor Code section 98.6, the employee must show that:
- They reported a wage violation to their employer or another government agency.
- The employer knew about the wage violation report.
- The employer took adverse action against the employee.
- The adverse action was motivated by the employee’s wage violation report.
To assert your rights under California Labor Code 98.6::
The more evidence you have to support your claim, the stronger your case will be. Some types of evidence that may be helpful include documentation of the wage violation, such as paystubs or timecards. Also, obtain evidence that you reported the wage violation to your employer, such as an email or letter. Also, obtain evidence of the adverse action taken against you, such as a termination letter or demotion notice.
You can then either 1) file a complaint with the California Labor Commissioner or 2) contact an experienced employment attorney.
The Labor Commissioner is a state agency that investigates and enforces California labor laws. You can file a complaint online, by phone, or by mail. An experienced employment law attorney can help you navigate the legal process and protect your rights.
Protections Under Labor Code 1102.5
Labor Code section 1102.5 prohibits employers from retaliating against employees who report suspected violations of law to a government agency, who testify in a proceeding before a government agency, or to an employee of the company who has authority to investigate, discover, or correct the violation. This could include a supervisor, manager, corporate officer, or company executive. It is important to remember that the employee doesn’t need to be correct in their belief, but rather the employee must only prove that they held the belief of the violation in good faith, even if mistaken.
This protection is very broad and covers a wide range of activities, including reporting suspected fraud, waste, and abuse; reporting environmental violations; and reporting workplace safety and health violations.
To prove a retaliation claim under Labor Code section 1102.5, the employee must show that:
- They engaged in a protected activity, such as reporting a suspected violation of law or testifying in a proceeding before a government agency.
- The employer knew about the protected activity.
- The employer took adverse action against the employee.
- The adverse action was motivated by the employee’s protected activity.
You can assert your rights under California Labor Code 1102.5 by filing a complaint with the California Division of Labor Standards Enforcement (DLSE). The DLSE is a state agency that investigates and enforces California labor laws. You can file a complaint online, by phone, or by mail.
You can also contact an experienced employment law attorney. An employment law attorney can help you navigate the legal process and protect your rights.
New Anti-Retaliation Protections Under California AB 497
In October 2023, California Governor Gavin Newsom signed into law AB 497, which expands anti-retaliation protections for employees. The law amends California Labor Code Sections 98.6, 1102.5 and 1197.5 to create a rebuttable presumption of retaliation.
Essentially, the rebuttable presumption means that the trial court is required to assume an employer retaliated against its employee if it disciplined the employee within ninety days of the employee engaging in whistleblower conduct.
AB 497 protects a wide range of employee activities, including, but not limited to:
- Discussing wages, hours, or working conditions with other employees or with a third party (i.e. reporting violations).
- Organizing or participating in a work stoppage or other concerted activity to improve wages, hours, or working conditions.
- Requesting or testifying about working conditions at a public hearing.
- Filing a complaint with the Labor Commissioner or another government agency.
The rebuttable presumption makes it easier for the employee to prove their retaliation claim. In order for the presumption to apply, an employer must take adverse action against an employee within ninety days of the employee engaging in protective activity.
AB 497 applies to all employers in California, regardless of size. It also applies to labor organizations and employment agencies.
WHAT CAN BE RECOVERED IF YOU WIN A CLAIM ALLEGING RETALIATION?
Employees who prevail in a retaliation claim may be awarded a number of remedies, including:
- Back pay and benefits
- Front pay (future pay)
- Punitive damages
- Injunctive relief (an order requiring the employer to stop retaliating)
- Emotional distress damages
- Attorney’s fees and costs
PROTECTIONS FOR FILING A WORKERS’ COMPENSATION CLAIM
In the state of California, Labor Code Section 132a prohibits employees from retaliating against employees who file workers’ compensation claims. This means that employers cannot punish employees for filing a valid, good-faith claim or attempt to discourage employees from filing in the first place.
Labor Code 132a is an important law because it protects workers who are injured on the job from being punished for seeking the benefits they deserve. Workers’ compensation benefits can help injured workers pay for medical expenses, lost wages, and other costs associated with their injury.
To prove a Labor Code 132a claim, an employee must show that 1) They filed a workers’ compensation claim; 2) Their employer knew about the workers’ compensation claim. 3) Their employer took adverse action against them, such as firing them, demoting them, or reducing their pay, and 4) The adverse action was motivated by their workers’ compensation claim.
An employee who prevails in a 132(a) claim can receive significant penalties in addition to their workers’ compensation benefits. These penalties can include up to $10,000.00 in additional workers’ compensation damages, reinstatement of the employee, and payment of lost wages and benefits.
Labor Code 132a is a powerful law that protects workers from retaliation for filing workers’ compensation claims. If you believe that you have been retaliated against by your employer, you should contact an experienced workers’ compensation attorney, like Gateway Pacific Law Group, to discuss your legal options.
California’s anti-retaliation laws are designed to protect employees from being punished for speaking up about wrongdoing or exercising their rights. If you believe that you have been retaliated against by your employer, you should contact an experienced employment law attorney to discuss your options.
About The Author
Roger Haag is an attorney who specializes in consumer, labor, and employment law, primarily representing employees. Mr. Haag has extensive experience in various legal proceedings, including arbitration hearings, administrative hearings, bench and jury trials, and has even presented arguments before the California Courts of Appeal. Additionally, Mr. Haag served in the United States Navy and also has professional experience with the Department of the Navy’s Civilian Acquisition Workforce and Chief of Naval Operations Executive Panel in Washington D.C.
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