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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
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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.
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