Many individuals in today’s workplace may experience illegal retaliation. In years past, many victims of retaliation had no help from the government or the courts. More recently, that long-awaited protection has surfaced in the form of heavy-handed Labor Code legislation and a pattern of employee-friendly court ruling. The day is finally here where revenge by a supervisor against a well-intentioned subordinate is no longer tolerated. This article aims to inform employees of a newly-established right, how employees may be retaliated against for exercising their rights, and what avenues employees may take to protect themselves.
Here is an example. Have you been a qualified employee (worked at least 30 days in California within one year and satisfied your 90 day initial employment period) and been afraid to use accrued paid sick leave because your supervisor told you or indicated that your job would be in jeopardy? Effective January 1 2015, California has a new Paid Sick Leave law (Assembly Bill 1522). The law entitles qualified employees to earn at least three sick days per year or receive them in lump sum upfront. The employee may use the leave for a family member or for his or her own “preventive care or care of an existing health condition, or for specified purposes if the employee is a victim of domestic violence, sexual assault or stalking.” Family members include the employee’s “parent, child, spouse, registered domestic partner, grandparent, grandchild, and sibling.” Please keep in mind that accrual of the sick days does not begin until July 1, 2015. From that point, an employee may get one hour of paid leave for every 30 hours worked. Your employer must post a notice of this requirement by January 1, 2015, keep you informed of the hours you’ve earned, and maintain a record of any accrued and used paid sick time for at least three years.
Similar to other California laws that protect employees from retaliation, this law prohibits employers from retaliating against you for exercising your rights. If you ever feel like you’ve been retaliated against for exercising your right as an employee in California, please be aware of the following agencies and laws that protect you.
For certain violations involving your wages or paid time off, you may file a complaint on the State of California Department of Industrial Relations website here: http://www.dir.ca.gov/dlse/howtofilediscriminationcomplaint.htm. Also, you may file a discrimination claim (or a claim for retaliation for reporting of discrimination) with the U.S. Equal Employment Opportunity Commission here: http://www.eeoc.gov/employees/charge.cfm. Note that it is illegal to fire, demote, harass, or retaliate against employees if they file a charge of discrimination, complained to their employer about illegal conduct, or participated in an employment discrimination investigation or lawsuit.
Typically, one type of violation or retaliation by an employer is a sign of many other violations which a capable plaintiff’s employment attorney can analyze on your behalf. For educational purposes, please see the anti-retaliation laws below, and give us a call if you feel like any of them have been broken by your employer.
· Labor Code Section 1102.5 prohibits retaliation against employees who “blow the whistle” by notifying a government agency on, or refuse to participate in, activity that would violate any laws or regulations in the workplace.
· Labor Code Section 98.6 prohibits retaliation against employees who file a complaint for labor code violations with the Labor Commissioner or the Department of Fair Employment and Housing.
· Labor Code 6399.7 prohibits retaliation against employees for filing a complaint or testifying on occupational safety and health issues.
· Government Code Section 12653 et al. prohibits retaliation against employees who report to a government entity any fraudulent billing that were improperly submitted for payment to the government.
· Government Code Section 12940(h) prohibits retaliation against employees who oppose discrimination or harassment based on race, religion, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, age, or sexual orientation.
· Health and Safety Code Section 1278.5 prohibits retaliation against patients, physicians, nurses and medical staff who whistleblow to the government or its agencies on patient care issues at a healthcare facility.
· Finally, California has its own Whistleblower Protection Act at Government Code Sections 8547-8547.12 which specifically protects state employees against retribution from reporting waste, fraud, abuse of authority, violation of law or threat to publish health.