Faq About Retaliation & Discrimination Against Employees

Even though California is an employment-at-will state, California law prohibits employers from firing an employee for discrimination based on age, race, sexual orientation, disability, relation, national origin, or sex. Employers are also prohibited from retaliating against an employee for certain actions, such as the employee participating in lawful conduct occurring during nonworking hours and away from the employer’s premises.

The Labor Commissioner of the California Department of Industrial Relations enforces the California laws that specifically prohibit discrimination and retaliation against employees and job applicants. Complaints against an employer must be filed within one year of the allegedly illegal act unless the law state otherwise. Currently, deadlines to file complaints have temporarily been suspended due to the coronavirus pandemic.

Wrongful termination laws protect California workers when they are dismissed from their employment for unlawful reasons. Workplace retaliation laws protect workers who do not suffer a loss of employment but other adverse employment consequences because of the illegal retaliatory actions by an employer.

Here are answers to some frequently asked questions about unlawful retaliation and discrimination against employees in the workplace.

1.  When is my employer prohibited from retaliating against me?

Employers in California are prohibited from retaliating against workers who engage in any lawful conduct occurring during nonworking hours and away from the employer’s premises. California employers are also prohibited from retaliating against workers who engage in any “protected activity.”

2.  What are “protected activities”?

Under California law, the following are some examples of “protected activities:

• filing or threatening to file a wage claim with the Labor Commissioner’s office;
• taking time off to serve on a jury;
• taking time off to appear in court to comply with a subpoena or court order as a witness in a judicial proceeding;
• whistleblowing of the employer engaging in an illegal practice;
• complaining about a health or safety hazard;
• refusing to perform hazardous work; or
• refusing to participate in any activity that would result in a violation of federal or state statutes.

3.  What are the time limits for filing claims against an employer who engages in illegal retaliation or discrimination?

Most sections of the California Labor Code require that the complaint be filed within one year of the act of discrimination or retaliation. Other Labor Code provisions provide longer periods for filing a complaint. For example, California Labor Code § 1197.5 has a two-year statute of limitations for filing a complaint that starts to run on the date of the alleged unlawful act. This statute applies to discrimination in the payment of wages because of sex, race, or ethnicity. You may need to consult an employment law attorney to determine the statute that applies to your claim.

4. What happens after I file a complaint?

An investigator from the Labor Commissioner’s Office will contact you. The investigator will prepare a written report on which the labor commissioner will review and base its’ decision. You may be interviewed by this investigator.

5. What if the Labor Commissioner dismisses my complaint?

If the complaint is dismissed after an investigation, the employee has the right to file a civil action against the employer in court.

6.  What legal remedies are available if an employer retaliates or discriminates against me?

California anti-discrimination and retaliation law attempts to make victims whole. Thus, remedies may include, but are not limited to, the following:

• payment of back wages;
• reinstatement of employment;
• an order directing the employer to cease and desist from the illegal conduct;
• reinstatement of benefits;
• reversal of a demotion;
• the posting of a workplace notice;
• removing adverse documentation in personnel files;

California law prohibits employers from retaliating against, discriminating against, or wrongfully terminating employees who assert their rights under California law. The seasoned and knowledgeable employment law attorneys at Moss Bollinger will help ensure that your rights as a California worker are protected. If your employer has engaged in any illegal conduct under California law, contact Moss Bollinger today at (310) 982-2291 or reach us online.