Illegal Retaliation In The Workplace

THE BOTTOM LINE: Your employer cannot take an adverse action against you because you engaged in a protected activity, which are the following: 

• Complaining about or opposing harassment or discrimination.

• Requesting an accommodation for a disability or religious belief.

• Complaining about or opposing unsafe working conditions.

• Reporting that your employer defrauded the government.

• Complaining about or opposing unsafe patient care or conditions.

• Complaining about or opposing any other violation of law.  ​

These are protected activities.

THE Law:  California has a web of laws prohibiting different types of workplace retaliation.  These specific laws and what they prohibit are as follows: 

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California's Fair Employment and Housing Act ("FEHA"), which prohibits workplace discrimination and harassment, also prohibits employers from retaliating against employees that complain about or oppose workplace harassment or discrimination: 

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It is an unlawful employment practice . . . for any employer to discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. 

Cal. Gov. Code, § 12940(h).

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The California Labor Code prohibits employers from retaliating against employees that report suspected violations of state, federal, or local laws or regulations:

An employer . . . shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. 

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Cal. Lab. Code, § 1102.5(b).  

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California's FEHA prohibits retaliation for requesting accommodation for a disability or religious belief:  

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It is an unlawful employment practice . . . for an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.

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Cal. Gov. Code, §§ 12940(l)(4), (m)(2).

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California Labor Code prohibits retaliation for complaining about an unsafe working condition, participating in an OSHA investigation, or reporting a workplace injury: 

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No person shall discharge or in any manner discriminate against any employee because the employee . . .(1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative. (2) Instituted or caused to be instituted any proceeding under or relating to their rights or has testified or is about to testify in the proceeding or because of the exercise by the employee on behalf of themselves, or others of any rights afforded to them. (3) Participated in an occupational health and safety committee established pursuant to Section 6401.7. (4) Reported a work-related fatality, injury, or illness, requested access to occupational injury or illness reports and records that are made or maintained pursuant to Subchapter 1 (commencing with Section 14000) of Chapter 1 of Division 1 of Title 8 of the California Code of Regulations, or exercised any other rights protected by the federal Occupational Safety and Health Act (29 U.S.C. Sec. 651 et seq.).

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Cal. Lab. Code, § 6310(a).  

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California Government Code's "False Claims Act" protects employees that report their employer defrauding the government out of money: 

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Any employee . . . shall be entitled to all relief necessary to make that employee . . .  whole, if that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of that employee’s . . . employment because of lawful acts done by the employee . . . in furtherance of an action under this section or other efforts to stop one or more violations of this article. 

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Cal. Gov. Code, § 12653(a). 

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California Health and Safety Code prohibits retaliation against employees at health care facilities that report unsafe patient care or patient conditions:

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A health facility shall not discriminate or retaliate, in any manner, against a patient, employee, member of the medical staff, or other health care worker of the health facility because that person has done either of the following: (A) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity. (B) Has initiated, participated, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity.

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Cal. Health and Safety Code, § 1278.5(b).

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definitions: So what does it mean that an employer cannot take an adverse action against you because you engaged in a protected activity?  To understand what's illegal, these terms need to be unpacked:  

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• Adverse Action: An adverse employment action is anything that negatively affects the terms, conditions, or privileges of your employment.  It is typically a termination, demotion, salary reduction, position change, or schedule change.  However, adverse employment actions can take many other forms, including patterns of conduct that have this same adverse impact or even subtly impair your overall job performance or prospects for promotion. 

• Because: An adverse employment action is because your engaged in a protected activity if the protected activity (i.e. complaining about harassment) is a substantial motivating reason for your employer's decision to take the adverse action. However, your protected activity must have been more than a remote or trivial reason for the adverse action.  It must have actually contributed to the decision, although it does not have to be the only motivating reason.  

• Protected Activities: Protected activities are  those specific things that California's web of anti-retaliation laws described above say cannot be the basis of adverse employment decisions.  The general policy reasoning here, is that California wants to encourage employees to come forward and report unsafe or illegal working conditions.  Again, the specific protected activities are as follows: ​

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• Complaining about or opposing unsafe working conditions.

• Reporting that your employer defrauded the government.

• Complaining about or opposing unsafe patient care or conditions.

• Complaining about or opposing any other violation of law.

• Complaining about or opposing harassment or discrimination.

• Requesting an accommodation for a disability or religious belief.

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