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:
- 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
- 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.
Public Employee Whistleblowers Have Important Rights in California under Labor Code section 1102.5
Public employees who are terminated after they blow the whistle on illegal conduct often have the opportunity to appeal their termination to some type of board or officer. That entity in turn usually has the authority to either rule on their claims or to make a recommendation to a civil service agency regarding whether the termination should be upheld or not. These proceedings hold out the promise of swift justice-a hearing and a decision by an impartial fact-finder in a relatively short amount of time. In practice, however, they rarely result in any type of reinstatement or fairness.
Public employees who make use of these appeals often find that when they try to bring their claims in court, where they have a better chance of getting a fair shake, the public entity argues that they are barred (“precluded”) from suing because they already had a hearing as part of the appeal process. In other words, public entities try to block public employees from suing just because the public employees make use of the civil service appeal process (which, as described above, is rarely fair or impartial).
That was the case in Bahra v. City of San Bernardino (9th Cir. 2019) Case No. 18-55789. Mr. Bahra, the plaintiff, worked as a social services practitioner for San Bernardino County in the Department of Children and Family Services (“CFS”). He discovered that a particular foster home was abusing children, but that CFS’s database did not reflect that history because of a series or database mistakes. He then reported these errors to his manager. (more…)
Meal Breaks and Rest Breaks: Guidance from the Second DCA
Cacho v. Eurostar, Inc. (2019) 43 Cal.App.5th 885, provides some guidance regarding when courts will and will not certify class actions claiming failure to provide meal breaks and/or failure to authorize and permit rest breaks under California law.
PAGA, Individual Claims, Public Entities, and Section 1102.5 Whistleblower Claims
On September 8, 2019, the Court of Appeal for the Second Appellate District issued an important decision in the case of Hawkins v. City of Los Angeles (Case Nos. B279719, B282416). That decision casts light on the following questions: (1) Whether PAGA claims can be brought on behalf of an individual, as opposed to a group of aggrieved employees; (2) Whether PAGA claims can be brought against public entities; and (3) Whether attorneys’ fees are recoverable under Labor Code section 1102.5.
Can California Workers Recover Waiting Time Penalties, Wage Statement Penalties, or Attorneys’ Fees for Meal and Rest Period Violations?
A recent decision from the Court of Appeal for the Second Appellate District in the case of Naranjo v. Spectrum Security Services, Inc. (September 26, 2019) Case No. B256232 addresses several unresolved questions pertaining to meal and rest periods in California.
First, the Court upheld the trial court’s ruling that Spectrum had not met the requirements for an on-duty meal period because, during part of the class period, it did not have a written agreement in which the employees were advised that the agreement could be revoked. In reaching this conclusion the Court rejected Spectrum’s argument that it had substantially complied with the on-duty meal period requirements. (more…)
My Company Owes Me Wages. Can I Sue My Boss Individually For Them?
In California, employees can sue certain individuals for money that their employers owe them. But a recent decision by the California Supreme Court limits the avenues for that type of recovery.
First, the good news: California Labor Code section 558.1 allows “person[s] acting on behalf of an employer” to be held liable as the employer for violating any provision regulating minimum wages or hours and days of work in any of the Industrial Welfare Commission wage orders. This section also applies to the following Labor Code sections: 203 (failure to pay wages due at the time of termination); 226 (failure to provide proper wage statements); 226.7 (failure to provide meal and rest breaks); 1193.6 (failure to pay minimum wage); 1194 (failure to pay minimum wage) and 2802 (failure to reimburse for business expenses). (more…)
Which Wage and Hour Laws Apply to California Public Employees?
Wage and hour laws require that employers pay minimum wages and overtime wages, provide meal and rest breaks, and pay all wages immediately upon termination of employment, among many other things. Public employees often wonder whether they are covered by these laws, or whether such basic protections do not apply to them. The answer in California, in true lawyerly fashion, is, “it depends.” This post will attempt to sort out which wage and hour laws apply to public employees and which, unfortunately, do not. (more…)
California Court Clarifies Rule Regarding Reimbursing Employees for Slip-Resistant Shoes
When is a California employer required to reimburse its employees for the cost of slip-resistant shoes? On June 4, 2019, the Court of Appeal for the Third Appellate District answered this question in the case of Townley v. BJ’s Restaurants, Inc. (Case No. C086672).
The defendant in Townley operates 63 restaurants in California. In order to avoid slip and fall accidents, it had a policy that required all hourly employees to wear slip-resistant shoes while at work. These shoes also had to be black and have a closed toe. The defendant did not require any particular type of design or brand of shoe.
The Court of Appeal held that the defendant was not required to pay for the cost of its employees’ slip-resistant shoes. The Court noted first that California employers are required to pay for work clothing when the clothing is a “uniform” or qualifies as protective apparel regulated by CAL/OSHA or OSHA. See 8 Cal. Code. Regs. Tit. 8, § 11050(9)(A).
However, the Court also noted that the Division of Labor Standards Enforcement (DLSE) had authored an opinion letter stating that employers are allowed to specify that employees must wear basic wardrobe items such as black shoes without having to pay for them. See Opinion Letter No. 1990.09.18 (1990). The question is whether the item required is “usual and generally usable in the occupation.”
Turning to the facts of the case, the Court concluded that the slip-resistant shoes at issue did not qualify as a “reasonable expenditure” under Section 2802. The plaintiff had not argued that the shoes were part of a uniform. Nor could she prove that such shoes were not usual and generally usable in the restaurant industry. Finally, the Court found no support for the argument that the defendant had to reimburse its employees for basic non-uniform items.
If you have questions about your rights in the workplace, including whether or not your employer is required to reimburse you for the cost of certain things that you have purchased for work, please feel free to contact the attorneys at Hunter Pyle Law for a free and confidential intake process. We can be reached at inquire@hunterpylelaw or at (510) 444-4400.
Whistleblower Rights under California Labor Code Section 1102.5
A whistleblower is someone who calls attention to unlawful behavior or activities in the workplace. California Labor Code section 1102.5 is one of the strongest whistleblower protection laws in the land. The recent decision of Ross v. County of Riverside (2019) 2019 WL 2537342 further strengthens that law. by clarifying that employees need only believe that some illegal activity is happening when they report it. They do not have to expressly state that the activity violates the law in order to be protected. (more…)
Dynamex Applies to Franchisors and Is Retroactive: The Ninth Circuit Weighs in
All companies want to reduce their labor costs. Unfortunately, some resort to classifying their workers as independent contractors when they really should be classified as employees. Among other issues, that misclassification robs the workers of critical protections under the law: For example, many wage and hour laws do not apply to independent contractors.
Last year, in Dynamex Ops. v. Superior Court (2018) 416 P.3d 1, the California Supreme Court issued a strong opinion in favor of California’s workers. Dynamex adopted the “ABC test” for determining whether workers are employees or independent contractors under the California wage orders. Now, in Vasquez v. Jan-Pro Franchising Int’l (May 2, 2019), the Ninth Circuit Court of Appeals has gone further, approving the ABC test, holding that Dynamex applies retroactively, and applying it to franchise relationships. (more…)