Fighting Workplace Retaliation in California: What You Need to Know About It

Employee was fired at willImage Source:

What is the “at will” employment doctrine?

  • “At will” employment doctrine refers to an employment relationship in which an employer can terminate an employee at any time and/or for any valid reason.
  • On the other hand, an employee may discontinue his or her work with the employer at any time.
  • However, there are exceptions to it that basically provide legal protections for “at will” employees in the workplace. Basically, these protections help prevent retaliatory actions such as wrongful termination and give employees the opportunity to file their claims against erring employers.
  • As it is, there are two exceptions to the “at will” rule in California employment; one is derived from common law and the other is derived from statutes enacted through state legislation.

Legal protections under common law

  • An “at will” employee cannot retaliate against an employee by terminating his or her employment for reasons that violate public policy.
  • Public policies serve the interest of the people, not just merely the person or the company involved. They are found in constitutions, statutes, and administrative regulations on either federal or state level.

Legal statutory protections

  • There is a California statute that provides whistleblowers legal protections from any adverse employment decision by their employers, including wrongful termination and other actions that are considered retaliatory.
  • As it is, a whistleblower is someone who reports his or her employer’s illegal activity that is believed to be in violation of a state or federal statute or in violation of any public policy rule, or refuse to take part in such an activity.
  • An employee is likewise protected from wrongful termination or any other retaliatory actions if he or she engages in a protected activity or if he or she files an employment and labor complaint.

Activities protected under state law

  • Under common law protections, California employees cannot be subjected to retaliation for refusing to disregard a certain statute, performing a statutory right (i.e. voting, serving jury duty), taking leaves as stated under the California Family Rights Act (CFRA), reporting minimum wage, overtime and other wage and hour violations, or for discussing matters with regard to wages.
  • Under statutory protections, California employers cannot retaliate against employees through termination for the latter’s disclosing or revealing of their employer’s alleged violation of either the federal or state law with a government or law enforcement agency, or for refusing to participate in an illegal activity that violates federal and/or state law. They can’t also be subjected to such if they engage in a protected activity, such as:
  1. Filing a discrimination complaint with the Department of Fair Employment and Housing (DFEH);
  2. Opposing an activity that is prohibited under the state’s Fair Employment and Housing Act (FEHA);
  3. Reporting a health and safety condition with the Division of Occupational Safety and Health (DOSH); or
  4. For filing a workers’ compensation claim.

Filing retaliation claims in California

  • An employee who was subjected to wrongful termination and other retaliatory action must consult an employment lawyer in order for him or her to file a lawsuit against his or her employer. Generally, a lawsuit is filed within 2 years of the retaliatory action.
  • If the retaliation involved discrimination, a complaint can be filed with the Calif. DFEH. It must be filed 1 year of the retaliatory action.
  • If the retaliation was due to raising a concern on workplace health and safety, a complaint can be filed with the DOSH. A time limit of 6 months is provided for an aggrieved employee to do so.
  • If the retaliation involved filing workers’ compensation claims, a complaint can be filed with the state’s Division of Workers’ Compensation (DWC). A time limit of 1 year is provided.

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