Wrongful Termination

As we slowly transition from the new normal back to the old normal, we cannot forget that we are still very much in the midst of a global pandemic. Although cases have waned in California (for now), our state still tallies thousands of new cases every day. As we learned in June, this is not the time to throw caution to the wind.

Unfortunately, your employer might not feel the same way. Many people are coming back to work and finding that their employers are not following the Federal and State-mandated precautions. Although these workers don’t feel comfortable in such a dangerous work setting, they also don’t feel comfortable stirring the pot and risk losing their jobs. After all, their employers might already be struggling after months of shutdowns, and an added safety complaint might cause their employer to retaliate. Fortunately, employees who bring these safety concerns to their employer are protected from retaliation under California law.

California Labor Code §6310 prohibits retaliation against any employee who makes “any oral or written complaint to … his or her employer” relating to the employee’s health or safety.[1] Employees who prevail on a retaliation claim under §6310 are entitled to reinstatement and back pay, and these claims may be brought as a private right of action. Simply put, California employees can make complaints to their employers about health and safety concerns without fearing losing their job over this complaint. If they are terminated, they can file a lawsuit, and if successful, can be reinstated back in their position and receive backpay. Even if the complaint is not based on an actual health and safety violation, employees are still protected, so long as they complain in good faith about their working conditions.[2]

If an employee blows the whistle to a government or law enforcement agency, or anyone “with authority over the employee” regarding a safety violation under law, such as violating the State’s executive orders relating to COVID-19, workers are further protected from retaliation under California Labor Code §1102.5(b). Similarly, Labor Code 1102.5(a) prohibits employers from preventing their employees from disclosing safety concerns which the employee reasonably believes to be a violation of law.

California law provides many protections for employees who do not feel safe at work. While we all want to go back to normal, we must all recognize that COVID-19 is still here and we must remain vigilant. Fortunately, concerned employees are protected from retaliation.

Do You Need Legal Assistance?

Haeggquist & Eck, LLP is here to help employees fight for their rights if they experienced retaliation for speaking up about unsafe or unsanitary working conditions. If you were punished for speaking up about not feeling safe at work, especially within the context of the COVID-19 pandemic, we may be able to help you fight for fair and just compensation.

Reach out to our attorneys today for a free consultation by contacting us online or calling (619) 342-8000.

[1] See Cal. Lab. Code §6310(a)(1).

[2] Hentzel v. Singer Co., 138 Cal. App. 3d, 290, 299-300 (1982).

Under the newly enacted Families First Coronavirus Response Act (“FFCRA”), some employees are allowed to take up to 12 weeks of continuous or intermittent leave to care for their child because their child’s school has shut down and such employees cannot be fired for taking such leave.

The FFCRA requires private employers with fewer than 500 employees to provide employees who have been employed for more than 30 days with up to 12 weeks of Family Medical Leave Act (“FMLA”) leave if the employee cannot come to work, or telework, to care for a minor child whose school or child care is closed or unavailable due to COVID-19. Section 5104 of the FFCRA prohibits employers from discharging, disciplining, or discriminating against employees who take this type of leave under the FFCRA.

California law also requires employers who employ more than 25 employees to provide up to 40 hours of leave to parents, guardians, stepparents, foster parents and grandparents, who give advance notice to their employer, to care for their children during a “school emergency.” A “school emergency” includes when a child cannot return to school due to a “national disaster….” One could reasonably argue the pandemic qualifies as a “national disaster,” requiring an additional 40 hours of leave on top of the leave provided under the FFCRA. Importantly, California employers are prohibited for discharging or discriminating against their employees for taking this type of leave.

If Your Employer Has More Than 500 Employees

For employees working for employers with more than 500 employees, an employer is not required to provide a reasonable accommodation for an employee simply because an employee’s child’s school is closed under the FFCRA. While Federal and California law require employers to provide reasonable accommodations for pregnant or disabled employees, an employer is not required to provide a reasonable accommodation for employees to take care of their children just because schools or daycares have closed. Accordingly, there are no legal grounds to request this type of “reasonable accommodation” and therefore the law does not protect employees from being fired for requesting this accommodation.

If, however, an employee’s child suffers from a serious medical condition, where the parent must stay home to care for the child’s condition, the employee may be able to request an accommodation under the FMLA or under California’s Fair Employment and Housing Act (“FEHA”) based on the employee’s association with her disabled child.

Do You Need Legal Assistance?

If you have any questions about your specific rights to leave, please feel free to contact Haeggquist & Eck, LLP for more information and to arrange a free consultation with one of our attorneys.

Get in touch with us today by filling out our online contact form or calling (619) 342-8000 for help.

Assuming you did it on your own time, the answer is no. Employees cannot be fired because they joined the Black Lives Matter protests, or for any other political activity in which they participate.

At the Federal level, and in many states, political affiliation is not one of the traditional “protected classes” of anti-discrimination law. California, however, is among a minority of states that protect political affiliation and activity from workplace discrimination. Although California’s Fair Employment and Housing Act does not prevent employment discrimination on the basis of political affiliation, under California Labor Code §§1101 and 1102, employers may not interfere with or control employees’ political activity.

California’s law protecting political activity dates back to the New Deal era and the organized labor movement, which was growing in political power at that time. But the law is not limited to protecting labor activism and organization. The California Supreme Court has interpreted the law expansively in the intervening years. Under the law, banding together with others in support of a cause can be protected “political activity”; as could expressing support for political reform by a symbolic gesture, such as wearing a pin or an armband, or displaying an appropriate banner.

Based on this interpretation of the law, an employee would be protected from retaliation for marching in a Black Lives Matter protest on his or her own time. The employer could not discriminate against the employee for tweeting about the movement; or for discussing the movement with coworkers during an employee’s rest break. If the employer’s dress code allows t-shirts, the employer could not discriminate against an employee who wore a Black Lives Matter t-shirt to work, and the same goes for pins, posters, or other emblems of the movement. An employee probably cannot walk off the job in order to protest, but if the political activity is otherwise lawful and doesn’t interfere with the employee’s work, it should be protected.

Moreover, because the United States and California Constitutions both protect the right of the people to peaceably assemble and petition for a redress of grievances, terminating an employee for participating in a Black Lives Matter march might also violate the common law prohibition on terminating employees in violation of public policy. If your employer retaliates against you after finding out you joined in the Black Lives Matter protests, contact an employment attorney to protect your rights.

Of course, other, more conventional political activity is protected as well, and actions short of outright termination might also violate the law. For example, an employer could not prevent an employee from wearing a “Feel the Bern” t-shirt, assuming a t-shirt is otherwise allowed by the employer’s dress code. A manager cannot ridicule an employee for being among the tens of thousands of Americans who cast protest ballots for Mickey Mouse or Santa Claus. Without question, an employer cannot fire or threaten to fire an employee because that employee supports a particular cause or candidate. Similarly, an employer cannot refuse to hire a person based on that person’s political beliefs or affiliations.

In an extreme case, where political affiliation discrimination turns violent, California’s hate crime law, known as the Ralph Act, may offer employees even further protection. In California, verbal or written threats of violence, physical assault, graffiti, vandalism, and property damage can be considered hate crimes if motivated by, among other reasons, a person’s political affiliation. If

workplace discrimination on the basis of political affiliation turns violent, or potentially violent, an employer could be liable for failing to act on reports of workplace conduct that would violate the hate crime law.

If you think your employer’s actions may violate California laws protecting political affiliation, you should contact an experienced employment attorney who can assess your situation and advise you on how you might protect your right to political affiliation.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!