Workplace safety is more important than ever. California employees have rights related to the safety of their work environments. While some risks are inherent in certain jobs (e.g. construction workers or health care professionals), employers should minimize risks to the extent possible by, for example, providing training and personal protective equipment (PPE). Still, some employers fall short.
Employees who report unsafe or unlawful conduct are protected from retaliation under state and federal laws. These laws are often referred to as whistleblower protections. Retaliation claims require a showing of three things: (1) that the employee engaged in protected activity; (2) that the employer took an adverse employment action against the employee; and (3) that there is a causal connection between the two.
If you suspect that you have been retaliated against for reporting unsafe or illegal conduct at your workplace, contact us for a free, confidential consultation. Our Bay Area employment lawyers specialize in prosecuting retaliation claims.
What constitutes protected activity depends on the federal or state law invoked. Retaliation claims are commonly brought pursuant to the following laws.
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.
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 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.
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.
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.
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.
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:
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 and the employee must have been employed for more than one year and worked at least 1,250 hours in the preceding 12 months. Additionally, the Families First Coronavirus Response Act (FFCRA) provides two additional weeks of paid sick days at full pay, up to $511 per day, to care for yourself because of quarantine or illness related to Covid-19. The FFCRA only applies to employers who have less than 500 employees and is only in effect through December 31, 2020.
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.
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.
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