Can They Fire Me for Complaining About Coronavirus? Your Right to a Safe Workplace in California

Hunter Pyle Law has received a number of calls from workers who are being targeted for retaliation after complaining that their workplace was not safe during the COVID-19 pandemic. This post explores some of the California laws that protect such workers. In short, as explained below, workers in California who speak out against unsafe conditions in the workplace, including unsafe conditions related to wearing masks and/or not being allowed to work from home, may be protected by three different sections of the California Labor Code.

Cal. Labor Code section 6310

California Labor Code section 6310 makes it illegal to retaliate against employees who complain, either verbally or in writing, either to their employer or to the government about unsafe working conditions or work practices. This section would in theory protect workers who complain that it is unsafe to work without masks, for example, as well as workers who protest being forced to work at the office instead of from home during a pandemic.

In terms of remedies, section 6310(b) provides that any employee who prevails on a claim under section 6310 is entitled to reinstatement and back pay. Section 6310(c) goes further, providing that an employer may not retaliate against the family members of any person who has, or is perceived to have, engaged in any acts protected by section 6310

Cases interpreting section 6310 have clarified that this law applies to situations in which an employer makes an informal complaint to his or her supervisor. Initially, section 6310 was interpreted as being limited to formal complaints made by employees to the Division of Labor Law Enforcement. See Division of Labor Law Enforcement v. Sampson (1976) 64 Cal.App.3d 893. However, after the Sampson decision the Legislature amended section 6310 to add complaints made to employers.  (Stats. 1977, ch. 460, § 1, p. 1515, italics added.)

As a result, later decisions have recognized that oral and written complaints to employers are protected under section 6310.  See Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109. Additionally, workers need not be right about their complaints as long as they have a good faith belief in them. See, e.g., Cabesuela, 68 Cal.App.4th at 109, in which the court agreed with the holding in  Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299-300 that, “… an employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe.” (italics added, fn. omitted.) In other words, section 6310 protects employees from discharge for good faith complaints about working conditions which they believe to be unsafe, even if the employees are wrong.

Finally, workers are not limited to complaints that are based on OSHA standards or orders.  Hentzel, 138 Cal.App.3d at 299–300. Nor are they required to proceed before the Labor Commissioner.  Cabesuela, 8 Cal.App.4th at 109.  Rather, they have a direct right of action and can file their claims in court. Id.

Cal. Labor Code section 6311

Section 6311 protects workers who refuse to work because of unsafe conditions.  In order to fall within the protection of section 6311, a work action must meet the following requirements:

1. The work must violate the Labor Code, including section 6400, or any occupational safety or health standard, or any safety order of the division or standards board; and
2. The violation must create a real and apparent hazard to the employee or his or her fellow employees.

Section 6311 on its face applies only to discharges and layoffs.  The remedies provision specifies that an employee who is not paid because of his or her refusal to perform work “in the performance of which this code, any occupational safety or health standard or any safety order of the division or standards board will be violated and where the violation would create a real and apparent hazard to the employee or his or her fellow employees” has a right of action for wages for the time the employee is without work as a result of the layoff or discharge.

Cal. Labor Code section 1102.5

Finally, section 1102.5 may also protect workers who raise health and safety concerns.  Section 1102.5 is addressed in more detail in other posts on this blog, but the basic provisions are as follows:

First, subsection (a) provides that employers cannot take steps to prevent employees from disclosing information that the employees believe discloses the violation of a law, rule, or regulation. That subsection reads as follows:

(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

Next, subsection (b) prevents employers from retaliating against employees who “blow the whistle” by complaining about unlawful conduct in the workplace. It reads as follows:

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

Last, subsection (c), like Labor Code section 6311, protects workers who refuse to perform work that would result in the violation of a law, rule, or regulation. Unlike section 6311, it does not appear to be limited to discharge or layoff. Thus, a worker who is retaliated against but not actually fired may wish to consider bringing a claim under section 1102.5(c) instead of section 6311:

(c) An employer, or any person acting on behalf of the employer, shall 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 of or noncompliance with a local, state, or federal rule or regulation.

If you have questions about your right to a safe and healthy workplace, or if you have been retaliated against for standing up for your rights at work, please feel free to contact the experienced attorneys at Hunter Pyle Law for a free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquires@hunterpylelaw.com.