What Is Protected Activity?

What constitutes protected activity depends on the federal or state law invoked. Retaliation claims are commonly brought pursuant to the following laws.

Occupational Safety and Health Act (OSHA)

Labor Code section 6310 makes it illegal for an employer to retaliate against an employee who reports or seeks to correct unsafe working conditions. Under OSHA, protected activity includes: (1) complaining about unsafe or unhealthy working conditions; (2) instituting or testifying in safety proceedings; (3) participating in safety committees; and (4) reporting a work-related fatality, injury or illness.

Complaints abouts unsafe or unhealthy working conditions can be made orally or in writing (written complaints are preferred) to the Division of Occupational Safety and Health (DOSH), other government entities that assist DOSH with employee safety or health, or the employer. The complaint must be made in good faith, meaning that the employee sincerely believes that the reported condition is hazardous.

California’s Whistleblower Statute

Labor Code section 1102.5 forbids employers from retaliating against employees who disclose information about a violation of federal, state, or local law or regulation and employees who refuse to participate in illegal conduct. A disclosure is protected only if it contains information that is not publicly known and not privileged or otherwise protected (e.g. attorney-client privileged or a trade secret). The conduct that the employee reports or objects to must either violate the law or be based on a reasonable belief that it is unlawful. But it does not have to be criminal in nature. Disclosure of a violation of an employer’s policies or non-legal standards is insufficient. An employee who refuses to engage in illegal activity must prove that the activity actually violates the law.

Health Care Whistleblower Statute

Health and Safety Code section 1278.5 prohibits hospitals and other health care facilities to which persons are admitted for a 24-hour stay or longer from retaliating against an employee, or health care worker for complaining about unsafe patient care or conditions. Complaints can be presented to the health facility itself, an accrediting agency or a government entity. To be protected by the statute, the complaint must involve concerns about the quality and safety of patient care. Additionally, an employee or health care worker engages in protected activity under this section by initiating or participating in an accrediting entity’s investigation or administrative proceeding related to the quality of care, services, or conditions at the facility.

The Fair Employment and Housing Act

A work environment can become unsafe as a result of workplace harassment or because an employer refuses to accommodate a disabled employee. Government Code section 12940 makes it illegal for employers to retaliate against employees for reporting harassment or requesting an accommodation. A report of discriminatory conduct can be made to the employer or to the California Department of Fair Employment and Housing. Employees are protected regardless of whether the complaint is substantiated or a request for accommodation is granted so long as the employee acts in good faith. An employee is also protected from retaliation under the Act by opposing prohibited conduct like sexual harassment.

What Is an Adverse Employment Action?

An adverse action includes the entire spectrum of employment actions likely to adversely and materially affect job performance or advancement opportunities. It is an action of consequence. Common adverse employment actions include termination, demotion, suspension, a pay decrease, or the removal of job responsibilities. It can also include conduct like an unwanted transfer to a less desirable job location or the refusal to promote an otherwise qualified candidate.


How Do I Know Whether the Adverse Employment Action Was the Result of Engaging in Protected Activity?

It’s difficult to show an employer’s retaliatory motive. Employers rarely admit their retaliatory animus. More often than not, an employer’s unlawful motive is proved by circumstantial evidence. For example, an adverse employment action that occurs close in time to the protected activity is presumed to be retaliatory. Additionally, evidence that the employer’s articulated reason for the adverse employment action is untrue or pretextual can establish a retaliatory motive.

Tips for Reporting Unsafe or Unlawful Conduct

Before you make a report, you may want to determine whether your employer has any established procedures for making a complaint. Additionally, your employer may have a hotline available to you to lodge complaints anonymously. However you choose to complain, be clear. Tell your employer that you are concerned by unsafe or unlawful practices. Provide your employer with all of the information, including witnesses and other evidence. It is best if your complaint is in writing. If you do not complain in writing, your employer may claim that you never filed a complaint and attempt to undermine your credibility.

There are other steps you can take to protect yourself:

  • Document in detail all of the unsafe or unlawful conduct.
  • Do not destroy any evidence, like emails or text messages.
  • Document your complaints and your employer’s response.
  • Report any retaliation for having made a complaint of harassment.
  • If you experience physical or emotional distress as a result of the unsafe conditions or retaliation, seek medical or mental health treatment from a professional.

Contact us. We can help guide you through the process and hold your employer accountable.

I Feel Unsafe at Work Because of Potential Exposure to Covid-19. What Are My Rights?

California employees are entitled to a reasonably safe workplace. If your job is putting you at increased risk (e.g. by not providing you with personal protective equipment), you can report the safety concern to California’s Department of Occupational Safety and Health or to the California Labor Commissioner. Your employer cannot retaliate against you for having made a good faith complaint about unsafe working conditions.

For employees who are at increased risk because of a disability or health condition, you may request a reasonable accommodation. A reasonable accommodation may include working from home, a leave of absence, or a different form of PPE. Employers cannot retaliate against an employee for having requested a reasonable accommodation for a disability or health condition.

If you have been exposed to someone with Covid-19 or contracted Covid-19, you may need to take time off of work to quarantine or recover. California law provides for a minimum of 3 days (or 24 hours) of paid sick leave per year for employees who have worked for the same employer for at least 30 days. Some employees are also entitled to 12 weeks of protected, unpaid leave for their own serious medical condition pursuant to the Family Medical Leave Act and California Family Rights Act. To qualify, the employer must have 50 or more employees within 75 miles of the employee’s workplace under FMLA or 5 or more employees under CFRA. Additionally, the employee must have been employed for more than one year and worked at least 1,250 hours in the preceding 12 months.

Finally, employees who are terminated or forced to quit their job because of the unsafe conditions or the employer’s failure to accommodate a disability or health condition can collect unemployment insurance. Additionally, the employer may be legally responsible for the employee’s lost wages and employment benefits and any emotional distress that results from the job loss.

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Our Employment Lawyers Can Help

Reporting unsafe or unlawful conduct does not make you a disloyal employee; it makes you a responsible citizen. Federal and state anti-retaliation laws encourage employees to speak up when they witness wrongdoing.

From offices in San Francisco, Oakland, and Marin County, our attorneys protect employees who do the right thing. We represent whistleblowers in the San Francisco Bay Area and throughout California who have been terminated or otherwise mistreated in retaliation for reporting employer wrongdoing. Our results don’t lie.

Sample Retaliation Verdicts

  • Yarborough v. PeopleSoft, Inc. (2001) at $5,450,000
  • Klaas v. ValleyCare Health Systems (2012) at $344,000

Sample Retaliation Settlement

  • 1 Plaintiff v. Local Government (2017) at $650,000

Contact us today. Our legal professions are available to assist.

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