Common California Anti-Retaliation Statutes

California has an expansive number of statutes that were implemented to protect employees on such issues as workplace safety, the prompt payment of all wages due and a discrimination free work environment. Fortunately, there are a multitude of anti-retaliation statutes to protect employees from any form of retaliation because they either reported or complained about perceived harassment, discrimination or other workplace problems to their employer and/or a governmental agency. Without these statutory protections, it is quite likely that the mistreatment of employees would be even more rampant throughout California and in fact the entire country. Please read below for several important anti-retaliation statutes that are specifically designed to protect you from unlawful actions by your employer for either exercising and/or standing up for your rights.

Workplace Safety Issues

Fortunately, there are quite a number of statutes that prevent an employer from retaliating against an employee for complaining, either internally or externally to governmental agencies, about issues of workplace safety. For example, Labor Code §6399.7 precludes an employer from retaliating against an employee who complains or testifies about any violation of the Hazardous Substances Information and Training Act. Similarly, Labor Code §§6310 and 6311 protect an employee that complains, testifies or refuses to work in an environment that they reasonably believe violates workplace safety rules or regulations. Finally, Labor Code §232.5 prevents an employer from compelling an employee to waive, in writing, their statutory right to discuss working conditions and/or in any manner precluding them from discussing their working conditions.

Wage & Hour Issues

In addition to workplace safety, California has established quite a number of anti-retaliation statutes for employees who complain or report various wage and hour issues to their employer and/or the governing regulatory agency. For example, California Labor Code §98.6 protects an employee from retaliation for pursuing any type of wage claim before the labor commissioner, threatening to pursue a claim for wages or other benefits before said entity, testifying in a proceeding before the commissioner or complaining to their employer about wage and hour issues. Additionally, an employer may not retaliate if an employee refuses to work hours in excess of those authorized by any industrial wage order or because a potential labor code violation places them in a real and apparent hazard. (California Labor Code §§1198.3 and 6311) Lastly, Labor Code §1102.5 protects an employee from retaliation because they report or are believed to report a violation of state or federal statutes or a federal, state or local rule or regulation. The issue of whether or not these anti-retaliation statutes are applicable and/or give rise to an individual claim by an employee as opposed to the labor commissioner can be complex. Therefore, it is highly recommended that you contact an experienced employment law attorney if you believe that you may have been the victim of any form of retaliation.

Reporting Perceived Discrimination or Harassment

In that several other articles on our site discuss claims under the Fair Employment & Housing Act (“FEHA”), we will not spend a considerable amount of time on such anti-retaliation statutes. However, Government Code §12940[h] does prohibit an employer from retaliating against an employee for complaining about perceived harassment or discrimination or for refusing to participate in any conduct that they believe violates FEHA. The perceived discrimination or harassment does not need to be true in order for the employee complained of the conduct to state a claim against their employer. The employee needs only to have a reasonable basis for making the complaint that caused the employer to retaliate.

GET HELP

Pursuing a claim against your employer and/or standing up for your rights at work can be a scary process. You do not have to go it alone as the Perrin Law Group has been dedicated to protecting the rights of all employees for nearly 30 years. Contact us today for your free consultation.

In a recent article, we discussed some of the remedies available to an individual who prevails on a retaliation claim under the Fair Employment & Housing Act. (California Government Code §12940 et. seq.) The article discussed the recovery of punitive damages against the individual engaging in the reprehensible conduct and potentially your employer for authorizing and/or ratifying the unlawful conduct. The remainder of this article will briefly discuss some of the issues that you can expect to encounter when pursuing punitive damages in a FEHA claim.

Reprehensibility of Conduct

As discussed in previous articles regarding the remedies available in a retaliation claim, an employee pursuing punitive damages must meet a very high evidentiary standard to prevail. As opposed to the “preponderance of the evidence” standard applicable to the remaining elements of a FEHA claim including any other damages, an employee seeking punitive damages must prove by “clear and convincing evidence” that a defendant is guilty of fraud, malice or oppression. (California Civil Code §3294). Although the evidentiary standard is high, it is slightly lower than the standard applicable to criminal cases that is “beyond a reasonable doubt.” As punitive damages are meant to punish or deter similar conduct by the defendant in the future, the “clear and convincing standard” requires that an employee prove that it is highly probable that the defendant is guilty of fraud, malice or oppression.

Civil Code §3294(c) defines fraud, malice and oppression. Fraud will not be covered in this article, as malice and oppression are far more common in FEHA punitive damage claims. The definitions of malice and oppression in Civil Code §3294 are actually quite similar. In addition to an intention to cause harm, a party may be found liable for punitive damages if they engage in despicable conduct in willful and conscious disregard to the rights or safety of others and/or subject an individual to cruel and unjust hardship. (Civil Code section 3294[c]). An actual intent to harm is not required before a Defendant can be found liable for punitive damages.

There is an additional hurdle that an employee must meet when pursuing punitive damages from a corporate employer. The malicious or oppressive act must either have been committed by, authorized or ratified by “an officer, director or managing agent” of the corporate defendant. (Civil Code §3294[b]). The mere fact that the individual committing the egregious actions against you is your supervisor and had the authority to fire you will not qualify them as a managing agent of a corporate employer. In a nutshell, a managing agent must have sufficient discretion to implement or alter significant corporate policy so as to subject the corporate employer to punitive damages. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686)

Other Factors

Several additional factors come into play when pursuing punitive damages in FEHA causes of action. For example, a Plaintiff must provide sufficient evidence of the Defendant’s financial condition before a single dollar of punitive damages can be awarded. (Adams v. Murakami[1991] 54 Cal. 3d 105) Additionally, a punitive damage award must be in proportion to the amount of compensatory damages awarded by a judge or jury. The above two factors will not be discussed in great detail because they are both complicated and often hotly contested. It is therefore highly recommended that you consult with an experienced employment law attorney to help with your FEHA claim particularly the punitive damage component of the cause of action.

Get Help Now

If you have more questions about punitive damage claims or have been the victim of any form of discrimination or harassment in or out of the workplace, contact the Perrin Law Group today for a free consultation.

Several of our recent articles involve the elements and difficulties involved in proving a retaliation claim under the Fair Employment & Housing Act (“FEHA”) and more specifically California Government Code §12940[h]. For more information about other essential components of a retaliation claim, please visit the article section of our website. The remainder of this article will provide a brief overview of the potential remedies available should you elect to pursue a FEHA retaliation claim.

ECONOMIC DAMAGES

One component of your claim involves economic damages. Economic damages include all of the wages and other benefits, such as health and dental insurance, which you were earning before losing a job as a result of retaliation. In addition to past wages, you may potentially recover future lost income based upon the difficulties that will be encountered in terms of gaining comparable employment in your region. It is important to retain an experienced employment law attorney, as retaliation claims are difficult enough even with knowledgeable counsel particularly on such issues as future lost income. Although you are not required to obtain a new job, you will not be rewarded for what is considered to be your failure to mitigate damages. Your damages will be reduced to the extent that you did not make reasonable efforts to obtain a new position.

EMOTIONAL DISTRESS DAMAGES

In addition to the economic benefits lost as a result of the retaliation, an employee may additionally recover the pain and suffering caused by the employer’s conduct. Employee’s victimized by retaliation frequently experience considerable stress as a result of the loss of a job. In addition to feeling betrayed by your employer, sleeplessness, loss of appetite, financial worries, depression and loneliness are often experienced by employees that have encountered retaliation. Without some documentation from a licensed physician or therapist or corroborating witness testimony in support of the emotional distress damages, it will be difficult for the court to place a monetary figure on that component of your retaliation claim. An attorney that regularly handles retaliation claims will greatly improve your chances of recovering emotional distress damages resulting from your termination.

PUNITIVE DAMAGES

Although the standard for recovering punitive damages is difficult, punitive damages may be awarded provided that an employee proves by a “clear and convincing” standard that the employer’s conduct was fraudulent, malicious or oppressive. (California Civil Code §3294) Stay tuned for a follow-up article wherein we will discuss the types of employer conduct that rises to the level of malicious or oppressive conduct. Punitive damages are designed to punish and deter the employer from engaging in such reprehensible conduct towards other victims in the future.

ATTORNEYS’ FEES

An employee who prevails on a FEHA retaliation claim is entitled to recover the attorneys’ fees and costs incurred in pursuing the action. If the employer prevails, attorneys’ fees will be awarded in extremely limited circumstances wherein the employee essentially had little or no evidence in support of the claim.

GET HELP NOW

If you have been a victim of retaliation or discrimination, contact the Perrin Law Group today for a free consultation and get the help you and your family deserve.

Despite the fact that federal and state anti-discrimination laws have been in the books for decades and numerous sexual harassment claims that are in the press, gender discrimination is unfortunately far too prevalent in the workplace even in the state of California which has some of the strongest regulations protecting employees. Part of the problem stems from the fact that discrimination has become far more subtle as employers have learned to conceal any bias that they might have with respect to hiring or promoting women in the workplace. The balance of this article will provide you with a few of the warning signs that may evidence gender discrimination.

Rampant Sexual Harassment

One of the tell tale signs of gender discrimination in the workplace involves how an employer responds to sexual harassment complaints particularly in light of their obligation to take the reasonable steps necessary to create a harassment free work environment.(California Government Code §12940[k]) If an employer is willing to ignore or tolerate harassment in the workplace despite the Fair Employment & Housing Act’s statutory mandate with respect to preventing discrimination and harassment, it is quite possible that gender discrimination is occurring at your job. Examples of which can be seen when an employer fails to properly investigate a harassment complaint by either failing to interview all critical witnesses or allowing the alleged perpetrator to be involved in the investigation.

Lack of Promotion or Advancement

Another potential indicator of gender discrimination in the workplace can be seen when women, although more qualified than their male counterparts, are consistently passed over in terms of job promotions or advancement. Similarly, discrimination may be evidenced by the fact that male employees occupy the majority of the key positions at a company. This type of evidence will normally require the use of statistics to establish a pattern of gender discrimination at the company with respect to consistently ignoring more qualified women candidates and instead filling vacant positions with male employees. It is therefore important to retain an experienced employment law attorney who is well versed in the use of statistics, as objective evidence indicating that qualified women are routinely denied advancement at an employer can potentially be a strong indicator of gender discrimination.

Improper Interview Questions or Comments

Finally, it is important to pay careful attention to the comments or questions posed to you by your prospective boss or supervisors during reviews or in connection with a potential promotion. If the interviewer asks questions which directly or indirectly relate to childcare issues or whether you intend to have a family, you may be a victim of gender discrimination. Similarly, a supervisor’s comments to you that you are too emotional or need to “man up” to be a better team player is potentially indicative of gender discrimination. It is important to document these comments as they occur so that you have an accurate record of the conduct in the event of future litigation and/or a complaint to the Department of Fair Employment & Housing.

Your Next Step

Unfortunately, workplace discrimination is still far too common in the present workplace. If you or someone you love has experienced any form of discrimination and/or harassment, contact the Perrin Law Group today for a free consultation today.