What is retaliation? What are my protected rights?
Retaliation occurs when an employer takes an “adverse action” against an employee because s/he has exercised a “protected legal right.” Many state and federal laws protect employees from employer retaliation.
Examples of protected legal rights include:
- Seeking information or legal advice on your workplace rights
- Notifying anyone about a possible violation of legal rights in your workplace
- Complaining that you or someone else is owed unpaid wages
- Complaining about harassment or discriminatory treatment on the job
- Complaining about unsafe working conditions
- Talking with your co-workers about your wages or workplace concerns — for instance, the possibility of unionizing
- Filing a workers’ compensation claim
- Filing or participating in a complaint with a governmental agency, such as the U.S. Equal Employment Opportunity Commission, the California Labor Commissioner or Department of Fair Employment and Housing, or other workplace rights agency
- Filing a lawsuit against your employer, or supporting co-workers who have filed a lawsuit
- Whistleblowing (alerting governmental agencies about your employer’s unlawful practices)
Has my employer retaliated against me? What is an adverse action?
If your employer knows you have engaged in a protected activity and later takes an “adverse action” against you, s/he may have acted with a retaliatory purpose. An “adverse action” is any act by an employer that negatively and significantly affects the terms and conditions of one’s employment.
Examples of adverse actions include:
- Termination, demotion, or suspension
- Harassment and/or threats
- Unequal or unfair discipline
- Reduction in pay or hours
- Refusal to hire or promote
- Treating disfavored employees less well than others — for example, with respect to vacation, leaves of absence, or requests for different shifts or working days
- Reverifying your employment authorization, including by using the E-Verify system, in a manner not permitted by federal law
- Reporting or threatening to report someone’s lack of immigration status to a government agency
- Any other action that would discourage a reasonable person from pursuing her rights — for instance, filing a fabricated civil or criminal charge
Retaliation can occur at any time after an employee exercises a protected right, and does not have to take place immediately. An action taken by an employer can be retaliatory even if it occurs weeks, months, or possibly even years later, so long as the employer took the action because the employee exercised a legal right.
An employer can claim that the adverse action was not retaliatory by offering a lawful, non-retaliatory reason for why it took the action. The employee, however, will have the opportunity to argue that the lawful reason offered by the employer was not the true motivation for the action.
What should I do if my employer has retaliated against me?
If you suspect that your employer has retaliated against you because you exercised a protected legal right, you have a number of options. In general, if there is an on-going lawsuit or government investigation involving your employer’s violations of your rights, a retaliation claim can be added to that lawsuit or investigation. For instance, you can ask that a retaliation claim be added to any existing complaints that your employer discriminated against you, or failed to pay you the minimum wage or for overtime. If there is no lawsuit or government investigation that has already begun, you can also file a new, independent complaint of retaliation against your employer.
If your employer is found to have retaliated against you in violation of federal or state law, different remedies may be available to you depending on the facts of your case. For example, you may be awarded payment for any wages you lost because of the retaliation (e.g., if you were suspended, fired, or your hours were cut). If the employer took adverse action against you by firing you, you may be reinstated to your former position. In addition, all references to the adverse action may be deleted from your personnel file, a notice to all employees could be posted in the workplace, or the employer might be required to take steps to ensure it will not retaliate in the future.
Where should I file a retaliation claim if I live in California?
If you have been retaliated against for making any kind of inquiry or complaint about whether you have been paid your lawful wages, you may file a retaliation claim against your employer with the California Division of Labor Standards Enforcement (DLSE, or “Labor Commissioner”).[1] The Labor Commissioner’s process is often easier for workers who cannot afford a private attorney. The DLSE’s complaint form is available at www.dir.ca.gov If you choose to file with DLSE, you must do so within 180 days (6 months) of the retaliatory act taken against you. DLSE will investigate and issue a decision within sixty days of receiving your complaint. If DLSE finds that your employer has unlawfully retaliated against you, penalties may include suspension of the employer’s business license and/or a fine.
If you have been retaliated against for complaining about discrimination in the workplace — that is, if you or others complained about being treated worse than other employees because of their race, sex, gender identity/expression, national origin, color, religion, disability, age (40 or older), military/veteran status, or pregnancy status – you may file a retaliation complaint with either the Equal Employment Opportunity Commission (“EEOC”) or the Civil Rights Department (“CRD”). If the discrimination was on the basis of sexual orientation, , marital status,, you may file a retaliation claim with CRD. For a list of ways to file with the EEOC, visit their website at http://www.eeoc.gov/employees/howtofile.cfm. For a list of ways to file with the CRD, visit their website at https://calcivilrights.ca.gov/complaintprocess/?content=fileComplaint#fileComplaintBody. If you are filing with the EEOC, you have 300 days from the date of the retaliation to file your complaint. If you are filing with the CRD, however, you have three years in which to do so.
If you were retaliated against because you complained about health or safety conditions at the workplace, you may also file a claim with the federal Office of Safety and Health Administration (“OSHA”). A claim form with OSHA is available at https://www.osha.gov/whistleblower/WBComplaint.html. You can also call or send a letter to your OSHA Regional office, which are listed here https://www.osha.gov/html/RAmap.html. In general, you have 30 days from your employer’s retaliatory act to file a claim with OSHA. However, this time period may be longer depending upon the OSHA violation you report has been violated. For more information, visit OSHA’s website about Whistleblower Protections, which is available at https://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf. If you filed a health or safety complaint with California’s Office of Safety and Health Administration (“Cal/OSHA”) and were retaliated against, you may also file a claim with the DLSE. Again, the DLSE complaint form is available at www.dir.ca.gov. If you choose to file with DLSE, you must do so within 180 days (6 months) of the retaliatory act taken against you.
If you were retaliated against because you filed a workers’ compensation claim, you may file a retaliation claim with the California Workers’ Compensation Appeals Board (“WCAB”) under Cal. Labor Code § 132a. The form for filing a retaliation claim under Cal. Labor Code § 132a is available at http://www.dir.ca.gov/dwc/iwguides/IWGuide07.pdf. If you choose to file with WCAB, you must do so within one year of the retaliatory act taken against you.
[1] Cal. Labor Code § 244(a); 1102.5.
DISCLAIMER
This Fact Sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, Legal Aid at Work cannot ensure the information in this Fact Sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.