Any employee who is discharged, threatened with discharge, demoted, suspended, or in any manner retaliated against in the terms and conditions of his or her employment for engaging in a “protected activity” under the jurisdiction of the Labor Commissioner may have a claim and may file a complaint with the Division of Labor Standards Enforcement (DLSE).
The Department of Fair Employment and Housing (DFEH) maintains the authority to investigate complaints of discrimination (race, religion, sex, national origin, etc.) in the areas of employment, housing, public accommodations and hate violence, and the National Labor Relations Board (NLRB) investigates complaints of unfair labor practices by employers and unions. In addition to filing a complaint with the DLSE, DFEH, or NLRB, an employee may sue their employer. However, the requisite administrative remedies must first be exhausted.
There are specific time limits for filing a complaint for discrimination and retaliation with the DLSE. The majority of the Labor Code Sections and IWC Orders require that the complaint be filed within six months of the discriminatory and retaliatory act. However, certain Labor Code Sections have longer time periods for filing a complaint.
The following are a few examples of laws enforced by the Labor Commissioner that specifically prohibit discrimination and retaliation against employees and job applicants:
- For filing or threatening to file a claim or complaint with the Labor Commissioner, instituting or causing to be instituted any proceeding relating to rights under the jurisdiction of the Labor Commissioner. Labor Code Section 98.6.
- For taking time off to serve on a jury or appearing as a witness in court. Labor Code Sections 230(a) and (b).
- An employee who is the parent or guardian of a pupil, for taking time off to appear in the pupil’s school at the request of the pupil’s teacher. Labor Code Section 230.7 and Education Code Section 48900.1.
- By an employer who employs 25 or more employees against an employee who is a parent, guardian, or grandparent having custody of a child, for taking time off (up to 40 hours each year, not exceeding eight hours in any calendar month) to participate in activities of the child’s school. Labor Code Section 230.8.
- For discussing or disclosing his or her wages, or for refusing to agree not to disclose his or her wages. Labor Code Sections 232(a) and (b).
- For using, or attempting to exercise the right to use sick leave to attend to the illness of a child, parent, spouse, domestic partner, or child of the domestic partner of the employee. Labor Code Section 233.
- Protects the rights of an applicant for employment or employee from disclosing information concerning an arrest or detention that did not result in conviction, or any information regarding referral to, and participation in, any pretrial or post-trial diversion program. Labor Code Section 432.7.
- Protects the rights of an applicant for employment or employee from disclosing information regarding a conviction related to the possession of marijuana where the conviction is more than two years old. Labor Code Section 432.8.
- By a private employer regularly employing 25 or more employees against an employee who believes she or he has been denied reasonable accommodation to participate in an alcohol or drug rehabilitation program. Labor Code Section 1025-1028.
- For engaging in political activity of the employee’s choice. Labor Code Sections 1101 and 1102.
- For disclosing information to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of a state or federal statute, or violation or noncompliance with a state or federal regulation, including, laws enacted for the protection of corporate shareholders, investors, employees, and the general public. Protects employees who refuse to participate in an activity that would result in a violation of a state or federal statute, or noncompliance with a state or federal rule or regulation. Protects an employee who exercised his or her rights under Labor Code Section 1102.5 in any former employment. Labor Code Section 1102.5.
- For being paid at a wage rate less than the rate paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where the payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality or production, or a differential based on any bona fide factor other than sex. Labor Code Section 1197.5.
- For refusing to work hours in excess of those permitted by the Industrial Welfare Commission (IWC) Orders. Labor Code Section 1198.3.
- For (1) complaining about safety or health conditions or practices, (2) instituting or causing to be instituted any proceeding relating to the employee’s rights to safe and healthful working conditions, or testifying in any such proceeding, or (3) participating in an occupational health and safety committee established pursuant to Labor Code Section 6401.7. Labor Code Section 6310.
Also, an employee alleging discrimination or retaliation due to any action that involves the federal Occupational Safety and Health (OSHA) regulations has the right to file a complaint with the federal OSHA agency. This complaint can be filed simultaneously with the State Labor Commissioner’s complaint.
Under the anti-discrimination/retaliation statutes, the remedy can include, but is not limited to: reinstatement of employment, reversal of a demotion, payment of back wages, reinstitution of benefits, purging personnel files of any adverse memos or letters, a cease and desist order, and the posting of a notice in the workplace.
The preceding scenarios are examples and not the complete list of circumstances in which an employer could wrongfully engage in retaliation. Jeff Schwartz, San Clemente workplace retaliation lawyer, can answer your preliminary questions, present the options you have, and help you pursue the option you choose. You may contact the Schwartz Law Firm at 888-730-0529.