RETALIATION

Employees cannot be terminated from their jobs or suffer a demotion or loss of other benefits by an action deemed retaliatory by the employer. An employee cannot be subject to an adverse employment act if he/she:

• Engages in a protected activity
• Objects to or resists workplace harassment or discrimination

Protected Activities

A protected activity includes acts such as whistle blowing or informing a government agency that the employer is committing fraudulent or unlawful acts, or that the employer is failing to follow wage and hour laws or other employment laws such as anti-discrimination regulations in hiring, firing, promotions, pay, or dispensing of benefits. Examples of protected activities include:

• Complaining about health or safety hazards
• Refusing to perform an activity that may be dangerous or hazardous
• Threatening to file a wage or hour claim with the Labor Board
• Serving on a jury
• Taking time off to serve as a voluntary firefighter, reserve police officer or emergency rescue personnel
• Taking time off to care for an immediate family member or newborn or newly adopted child within the Family Medical Leave Act
• Reporting, talking to or participating in an investigation or other proceeding involving the employer’s illegal or discriminatory actions

Adverse Employment Actions

Adverse employment acts that constitute retaliation include:

• Discharge
• Demotion
• Loss of benefits
• Wage or salary diminution
• Loss of seniority
• Harassment or threatening acts
• Unsupported negative performance evaluations
• Increased surveillance
• Unfounded civil or criminal charges designed to deter future complaints
• Any act that materially affects the terms and conditions of the employee’s employment

Litigation Process

Any employee who feels that they have been unlawfully retaliated against for engaging in a protected activity may file a claim with the California Department of Labor and Standards Enforcement (DLSE) within 6 months of the alleged retaliatory act. There are different filing time periods based on the nature of the act which the employer objected to by its unlawful retaliatory action.

A complaint based on health or safety violations can be filed with OSHA as well as with the DLSE. Any allegations of retaliation based on discrimination are filed with the DFEH, or Department of Fair Housing and Employment.

Once a complaint is filed, an investigation will ensue and a report eventually issued to the labor commissioner for review. If more information is needed, a hearing may be scheduled, which is an informal process although subpoenas and documentary as well as personal testimony may be offered to support or dispute the allegations. Attorneys and union representatives may be present. A decision called “Findings of Fact and Conclusion” is issued within 7 days after the hearing by the commissioner.

If the commissioner dismisses the complaint, the employee can appeal within 10 days or file an action in civil court against the employer.