Challenging Retaliation By An Employer
Were You Engaging In Activity Protected By Law?
“Protected activity” is a broadly defined term and encompasses many different types of behavior by the employee. For example, some common types of protected activity consist of an employee’s formal or informal complaints to a supervisor about workplace harassment or discrimination, reporting unsafe or illegal working conditions to a supervisor or outside government agency, requesting a reasonable accommodation because of a disability, complaining about unlawful pay practices or opposing an employer’s illegal conduct. Even an employee’s threat to file a charge of employment discrimination with the EEOC or DFEH is “protected activity” and therefore conduct protected by the anti-retaliation laws.
The employee need not be aware that the conduct about which he or she complains is in fact unlawful. Generally speaking, so long as the employee had a reasonable and good faith belief that the employer’s conduct was unlawful, then the employee should be protected from retaliation.
Which Laws Apply To Your Case?
Common-law protection: An employee may not be fired for reasons that violate a fundamental public policy. Generally, there are four categories of activities that are protected:
- Reporting a statutory violation for the public benefit
- Performing a mandatory statutory obligation
- Exercising a constitutional right or privilege
- Refusing to violate established law(s)
As some examples, employees are protected when they are fired for:
- Requesting and/or taking family and medical leave under the California Family Rights Act/Family Medical Leave Act
- Refusing to participate in, or disclosing to authorities, tax fraud perpetrated by the employer
- Advocating medically appropriate health care for patients
- Refusing to sign certain noncompete agreements
Statutory protections: There are numerous California and federal laws that protect employees from employer retaliation. Below are examples of the laws that protect employees.
California Whistleblower Protection
An employee may not be retaliated against for the following protected activities:
- Refusing to participate in an activity that would violate any state or federal law;
- Disclosing suspected violations of state or federal law to a supervisor, or to an employee with the authority to investigate, discover or correct the violation; or
- Disclosing suspected violations of state or federal law to the government or law enforcement.
An employer also may not retaliate against an employee whose family member engages in any of the activities described above.
An employee may not be fired (or discriminated against) in retaliation for opposing a practice made illegal under California’s Fair Employment and Housing Act (FEHA) or federal laws (e.g., Title VII, ADA). In other words, an employee who makes an internal complaint of conduct prohibited by law cannot be fired (or discriminated against).
An employee also cannot be fired (or discriminated against) in retaliation for filing a complaint, testifying, or assisting in a proceeding under FEHA. In other words, an employee who is a victim of or a witness to unlawful conduct cannot be fired (or discriminated against) for contacting or cooperating with the Department of Fair Employment and Housing (DFEH).
As a reminder, the FEHA prohibits, among other things, discrimination in terms and conditions of employment (hiring, pay, discipline and firing) on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, immigration status, sex, age or sexual orientation.
Occupational Safety And Health
An employee may not be fired for refusing to perform work under conditions where an employer’s violation of health and safety laws would create a real and apparent hazard to employees. Stated differently, an employee cannot be fired for complaining or refusing to work in unsafe working conditions caused by the employer.
Victim Of Crime/Domestic Violence Leave
An employee who is a victim of a crime cannot be fired or retaliated against for taking time off to appear in court to comply with a subpoena or other court order as a witness to a judicial proceeding. Similarly, an employer cannot fire or retaliate against an employee because of the employee’s status as a victim of domestic violence, sexual assault, and/or stalking.
Parental/Guardian School Leave
An employer may not fire or retaliate against an employee for taking time off to appear in the school of a pupil if the parental/guardian’s presence is requested by the school.
An employer may not retaliate against an employee for taking the time to vote.
An employer may not fire or retaliate against an employee for taking time off to serve on a jury so long as the employee gives reasonable notice that he or she is required to serve.
Other Protected Conduct
An employee may not be fired or retaliated against for engaging in conduct specified in various portions of the California Labor Code, including:
- Engaging in lawful conduct occurring during non-working hours away from the employer’s premises (e.g., having a second job)
- Filing a complaint relating to an employee’s rights that are under the jurisdiction of Labor Commissioner (e.g., complaint for failure to pay overtime, provide meal/rest/hear and recovery breaks, spit-shift premiums, etc.)
- Engaging in political activity
Have You Been Unlawfully Retaliated Against?
At Le Clerc & Le Clerc LLP in San Francisco, our attorneys understand how to apply the various laws that prohibit retaliation in the workplace. If you believe that you have been subject to unlawful retaliation by your employer, then contact us online or call 415-445-0900 to speak with an attorney.