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07 . 20 | Employment Law

What is Considered Retaliation in the Workplace?

If you think about it, there’s nothing worse than working in a toxic environment. This is because the negativity tends to affect everyone – not just one or two targeted employees. For those who are directly and indirectly concerned, the obvious question is what to do about it. Sadly, that is often a difficult question, especially when employees fear retaliation.

In this article, we’ll discuss the conduct that is legally classified as workplace retaliation in California, and relevant laws.

Workplace retaliation – a general explanation

Workplace retaliation is generally defined as any punitive action an employer takes in direct response employee who exercises his or her legal rights with respect to employment.

The most obvious example is termination. Other examples include demotion, a detrimental change in work schedule, denial of a promotion or denial of a raise.

In this context, there are a couple of key points to keep in mind. First, any action directed towards an employee is only classified as retaliation if it would discourage a sensible person in the same circumstances from making a complaint. Second, the U.S. Supreme Court has held that you must take the entirety of the situation into account when there is any question about retaliatory practices.

Provisions in the California Labor Code

Several provisions in the California Labor Code address different types of workplace retaliation.

For example, Labor Code Section 98.6, the broadest of these provisions, makes it illegal for any employer to fire, “or in any manner discriminate, retaliate, or take any adverse action against any employee (emphasis added)” for doing any or all of the following as allowed by law:

  • Filing a claim or complaint with the Labor Commissioner.
  • Threatening to file a claim or complaint with the Labor Commissioner.
  • Initiating any proceeding relating to rights under the Labor Commissioner’s purview.
  • Facilitating the initiation of any proceeding relating to rights under the Labor Commissioner’s purview.
  • Testifying in any such matter.
  • Using (on their own behalf, or on their co-workers’ behalf) any of the rights permitted under the Labor Code or Orders of the Industrial Welfare Commission.

This section also stipulates that consequences for an employer who retaliates against employee(s) for engaging in afore mentioned conduct include but are not limited to liability for civil penalties. Specifically, the employer must pay each aggrieved party up to $10,000 for each violation.

Different sections of the state Labor Code prohibit employers from retaliating against employees for taking time off for jury duty, as long as the employee provided reasonable notice; or for taking time for court appearances if the employee was the victim of a crime; or even for simply being the victim of a crime or abuse. However, the last provision only applies in certain circumstances. Specifically, the employee it applies when the employee has informed their employer about his or her status as such; or if the employer is directly aware of their employee’s status as such.

Employers with more than 25 employees are barred from retaliating against parents (or anyone legally classified as parents) who take lawfully permitted time off to fulfill parental responsibilities. These include involvement in their children’s school activities, carrying out tasks that facilitate the child’s education or care, and responding to school emergencies.

You can find a comprehensive list of labor laws that prohibit workplace retaliation on the California Department of Industrial Relations website.

Legal recourse after experiencing workplace retaliation

As an employee or former employee you have the right to report workplace retaliation by making a complaint with the Commissioner of Labor’s Office. You also have the right to report your experience to any other government or law enforcement agency.

If you want to make a formal complaint with the Labor Commissioner’s Office, you should be aware there is a specific deadline for doing so. In most cases, the deadline is 12 months (one year) after the retaliatory act(s). Furthermore, it is important to have documentation to back your claim before you file a complaint.

Once you have proof of retaliatory activity, you can file your complaint online or by conventional mail. Then it’s a waiting game while the Retaliation Complaint Investigation Unit (RCI) reviews your complaint and decides if an investigation is necessary. The RCI will let you know in writing if your complaint will be investigated.

If the matter is investigated, the matter is usually resolved through settlement or determination. If there is a determination of retaliation, the Labor Commissioner’s Office can mandate that your employer:

  • Pays you for any wages lost when you were wrongfully terminated, demoted, or suspended.
  • Pays penalties for each violation.
  • Returns you to your former position
  • Removes any reference to the negative action in your personnel file
  • Stops engaging in future retaliatory conduct
  • Makes other employees aware of what has transpired by posting relevant information

If your employer refuses to comply within the time prescribed by law and in absence of any settlement, the Labor Commissioner’s Office will sue your employer to enforce the “demand for relief.”

Reach out to knowledgeable LA workplace retaliation attorneys now

Filing a complaint through the Commissioner of Labor’s Office is not necessarily your only option for legal recourse. If you missed the 12-month filing deadline, the workplace retaliation lawyers here at LawPLA may be able to help. But time is of the essence. Simply use the form on our website or call our office to schedule a free consultation, today.

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