California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

While the law can’t prevent employers from retaliating against their employees, it can offer restitution should you fall victim to retaliation. Retaliation can come in many forms and can be a result of several different types of issues reported.

Often times the employee will report issues such as sexual harassment, unsafe working conditions, workers compensation claims, another employee breaking company policy or even broken laws, also known as Whistleblower. Most commonly discrimination is reported; such as: age, race, gender, sexual orientation, religion, and disability.

As unfortunate as retaliation is, it can be in administered in many different ways. Employers have been known to cut hours or pay, pass employees over for promotions, place people on unpaid administrative leave and even terminate employment. Termination in retaliation for reporting any of the previously mentioned issues would likely be considered a wrongful termination.

It’s also interesting to note that even though there might only one person, perhaps your manager, giving you a hard time or retaliating against you, under the law the company is still liable for that person’s actions. In 1998, the California Supreme Court ruled that individual managers and supervisors can’t be held personally liable for retaliation. However, the California Fair Employment and Housing Act says that it is unlawful for "any employer, labor organization, employment agency or person'' to engage in retaliation.

If you have recently reported some type of illegal or improper activity within the company and your working environment or conditions have been adversely effected you should seek counsel of an experienced California labor law attorney. An experienced attorney can help you understand the legal aspects of your situation as well as offer guidance in seeking recompense.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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Protection Against Retaliation

This rule sets out to prohibit retaliation and prevent interference with a whistleblower's report, as well as by intimidating to impose a confidentiality agreement. It’s important for whistle blowers to know that these rules still apply even if no compensation is awarded to the whistleblower.  The SEC has noted that these protections to not exempt the whistleblower from ethic responsibility.  If a whistleblower is found to break company or legal policy the anti-retaliation protection will not apply. The SEC also commented that the anti-retaliation protection is designed to strike the "appropriate balance between encouraging individuals to provide us with high-quality tips without fear of retaliation, on the one hand, while not encouraging bad faith or frivolous reports, or permitting abuse of the anti-retaliation protections, on the other." Specifically, "[t]he 'reasonable belief' standard requires that the employee hold a subjectively genuine belief that the information demonstrates a possible violation, and that this belief is one that a similarly situated employee might reasonably possess." 

Related Change at the SEC: The Cooperation Initiative

"The Cooperation Initiative," was presented earlier this year by the SEC as a departure from prior SEC practice in three ways:

1. Individuals are now presented credit for cooperation. Credit is offered to individuals based on a a fairly simple list of factors: "the timeliness of the individual's cooperation, including whether the individual was first to report the misconduct to the Commission or to offer his or her cooperation in the Investigation, and whether the cooperation was provided before he or she had any knowledge of a pending investigation or related action."
2. The 2010 Enforcement Manual does not override the Seaboard Report, but it does list factors signifying an entity has cooperated. Removed is a long list of factors, which some practitioners read as suggesting that cooperation would never be rewarded when the underlying conduct was serious or when some procedural step was skipped. Among the factors considered in assessing an entity's cooperation is "self-reporting of misconduct when it is discovered, including conducting a thorough review of the nature, extent, origins and consequences of the misconduct, and promptly, completely and effectively disclosing the misconduct to the public, to regulatory agencies, and to self-regulatory organizations."
3. January 13, 2010 Enforcement Manual offers a list of rewards available for cooperation. Many of these tools have never been available before; others have been used so infrequently they were considered of limited utility.

These new tools used to compensate companies for their cooperation have only been used twice since the their announcement earlier this year. First was Carter's, Inc; involved the SEC entering into a Non-Prosecution Agreement ("NPA"), related to its restatement of financials in late 2009. In the fall of 2009, Carter's discovered issues with its accounting for sales paid to wholesale customers. The company's audit committee hired a private securities law firm to conduct an internal investigation, and upon learning of issues, the company made a timely and thorough report of the matters to the SEC ahead of any public announcement and the eventual restatement of financials. The SEC rewarded the self report and follow-on extensive cooperation in the SEC's investigation by agreeing in the NPA to refrain from bringing any enforcement action against the company, though the SEC sued a former Carter's EVP for fraud related to the restatement. In the second case, the SEC entered a Deferred Prosecution Agreement ("DPA") with Tenaris related to alleged FCPA violations. Tenaris conducted a worldwide internal evaluation of FCPA matters and found that bribes had been paid in Uzbekistan. The company self reported the violations and cooperated with the SEC and DOJ in their investigations. Under the DPA, the SEC agreed not to file an enforcement action against the company in return for the company agreeing to certain actions related to future due diligence, training and compliance activities, as well as paying almost $10 million to the SEC and DOJ for disgorgement of profits and fines.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755

San Diego – (619) 342-1242 or (619) 272-2193

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Labor attorneys fought long and hard over whether or not Fair Labor Standards Act (FLSA) protects oral, as well as written, complaints in Kasten v. Saint-Gobain Performance Plastics Corp. On March 22, 2011, the United States Supreme Court issued its decision; the Court held, in a 6-2 decision, that the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) protect oral, as well as written, complaints.

Labor attorneys had already a won a suit against Saint-Gobain for placing time clocks in a location that did not allow workers the ability clock in prior to getting in and out of their gear, thus forcing them to work off the clock. Kasten filed an anti-retaliation suit against Saint-Gobain, alleging that Saint-Gobain terminated him for orally complaining about the location of the time clocks.

FLSA is probably better known for enforcing wage and hour issues such as overtime, working off the clock and reimbursable expenses, but  It also forbids employers from terminating  "any employee because such employee has filed any complaint alleging a violation of the statute.” The text of the FLSA was insufficient for the Court to interpret whether the term "filed" included oral complaints. Thus, the Court considered other factors, including:

·         A wide interpretation of "filed" would be the same as the understanding of the National Labor Relations Act's anti-retaliation provision

·         A narrow interpretation would weaken the FLSA's basic purpose - prohibiting detrimental labor conditions

·         TheEEOC and Secretary of Labor  have both decided that "filed" includes both oral and written complaints.

·         The FLSA's requirement that an employer receive fair notice of a complaint can be met by oral and written complaints

California labor attorneysdon’t commonly sue under FLSA because California's Labor Code has its own anti-retaliation provision. California Labor Code section 1102.5:

(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.

Nevertheless, the FLSA applies to California employers as well. Thus, California labor attorneyscan now rely on Kasten to protect California employees from retaliation for oral complaints about FLSA-protected rights.

If you feel you have been retaliated against after making a complaint at work, be it verbal or written, contact an experience California labor attorney to examine you case.  

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It seems more and more commonplace these days that employees are being terminated for what their employers deem “cause.”

In interviewing several of our clients over the past several months, one bank employee stated he was terminated in June of 2009 for a pornographic email that bank management discovered he received in 2004. The bank indicated he followed policy in deleting the email, but failed to report that he received it. The result? The bank terminated him and is now disputing his unemployment insurance claim and taking the position that they fired him for cause.

He is not alone. With the massive layoffs occurring in this economy, employers fear California wrongful termination lawsuits, California discrimination lawsuits as well as an increase cost in unemployment insurance premiums.

STRATEGY:  Document, document, document.

If an employee fears unjust retaliation, trumped up charges of misconduct or other hostile activities from an employer, it is important to expose these and other potentially illegal activities to management IN WRITING and contact a California labor law attorney at once.

California is an at will employment state and unless there is an employment contract that guarantees tenure, or the employee is in a protected class (i.e. gender, sexual orientation, disabled, pregnant, etc) there is little protection to a firing or layoff.

This is why prompt reporting of any illegal activities i.e. failure to pay overtime, falsifying time cards, or other fraudulent conduct to law enforcement or the appropriate government agency may offer protection under California Labor Code 1102.5  and related regulations under California Whistleblower laws.

In addition, it is often wise for an employee to make management aware of claims under the California whistleblower statutes. This reporting may be the difference between retaining employment and a wrongful termination; as the employer may be exposed to liability once made aware of the claim. Speak to a California labor law lawyer prior to acting, however.

In accordance with California Labor Code 98.6, an employer may be required to re-instate employment benefits and wages as well as correct wrongdoing should retaliation be proven.
 

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