California Employment Retaliation & Discrimination

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Employees sometimes get laid off, threatened with being fired, demoted, suspended, or face discrimination or retaliation in some form. These actions may go against the terms and conditions they were hired by. According to the Labor Commissioner in California, there are certain protected activities. If these are violated, an employee has the right to file a complaint with the Division of Labor Standards Enforcement.

There are a few different types of employees protected activities, according to Nakase | Wade California employment lawyers for employers; these including the following:

  • Filing a wage claim
  • Threatening to file a wage claim
  • Taking time from working to go to jury duty
  • Bringing up unsafe or hazardous conditions
  • Refusing to work in unsafe or hazardous conditions

A employee who files a wage claim lawsuit will also allege Labor Code 2699 PAGA. While an employee can file complaints for being discriminated or retaliated against, there are certain time limits. Generally, the employee has to file a complaint within half a year of the discrimination or retaliation taking place.

If an employee is ever in the situation where the employee suffers domestic abuse, the employee is  allowed to take time away from working. This is to ensure that the employee can get the help need. The employee will have a year from when the abuse occurred, in order to file a complaint.

When it comes to gender discrimination, you have two years from when you were discriminated against to file a complaint.

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An employee may have faced discrimination or retaliation from the employer because the employee brought up violations of childcare licensing laws. If so, the employee only have three months to file a complaint from the moment the action took place.

Once an employee file a complaint, the employee will get contacted by an investigator the office of the Labor Commissioner. The employer, any witnesses, and the employee will also get interviewed. It will be the investigator’s duty to then write a written report and submit it to the Labor Commissioner. The Labor Commissioner will then review the report. Once they do, they will notify the employee of their decision. They will use the facts, as they have been outlined within the investigator’s report.

There will be some situations where the Labor Commissioner will find the need for additional information to be presented. In such a case, there may be a need for a hearing. Both the employee and employer will receive notices, along with copies of the facts. The parties will receive this information 5 days prior to a hearing.

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This is just an informal hearing. Even so, any party at the hearing has the ability to subpoena witnesses and documents. This allows them to support the facts that have been documented within the report. There can also be lawyers, union representatives, and others acting as representatives at this hearing. All of the findings will be submitted to an official conclusion. This will be given to the Labor Commissioner within a week of the hearing taking place.

The complaint has the potential of getting dismissed by the Labor Commissioner. If it does, you have the right to file another court action against your employer. Additionally, you can file a complaint with OSHA if it involves OSHA regulations being violated. You will have one month to file this complaint with OHSA.

An employee have the ability to make use of a “make whole” remedy if the employee was discriminated or retaliated against. When this remedy is applied, the employee can get the following:

  • Get job back
  • Have a demotion reversed
  • Get wages that weren’t paid,
  • Receive restitution of benefits
  • Removal of any kind of negative memos or notices
  • Cease and desist orders
  • Posted notices within the workplace

Where can someone go to file a discrimination complaint?

Discrimination complaints can be filed at any one of the local offices of the DLSE. An employee also have the ability to access, fill out, and print out the related form, available online. The employee will have to mail out the form after filling it out to the Discrimination Complain Investigation Unit. This unit is part of the office of the Labor Commissioner.

What is the time frame for filing a complaint after a discrimination or retaliation occurs by an employer?

An employee will generally have half a year from when a complaint occurred to get a complaint filed. Depending on what labor code section an employee has used as the basis of your filing, the employee will have more or less time. When it comes to the Health and Safety Code, the employee has just three months to get a complaint filed.

What can be done if you don’t agree with the decision made by the Labor Commissioner?

There is usually no recourse for an employee can take if the employee disagree with the decision the Labor Commissioner made. However, if there is a violation relating to health and safety regulations, the employee may appeal. This is true if the Labor Commissioner has dismissed the complaint by citing a lack of evidence.

This appeal is mandated by the Federal Occupational Safety and Health Act. The office of the Labor Commissioner has to apply the same process, or one close to it, to such violations. There will be copies of the appeal issued to everyone involved. Each party will have a chance to respond. This appeal has to be filed within 15 days of getting the Determination.

Employers do not get to make an appeal in this situation. When the Labor Commissioner discovers that an employer broke the law, there will be a 30-day time window in which the Respondent has to comply with the order given.

Besides having the right to appeal, anyone part of a complaint where someone was retaliated against, can file a complaint. This complaint, officially called a CASPA, involved the health and safety within a workplace. It can be filed if you are not satisfied with the results of the investigation conducted by the Labor Commissioner. This sort of complaint is only able to be filed once you have exhausted California’s appeal rights.

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