Workplace Safety Complaint Retaliation in California

Workers in California have the right to work in safe workplaces. In the state, the Division of Occupational Safety and Health enforces California's workplace safety regulations. Workers who work in unsafe conditions can file complaints with CalOSHA. The agency will then investigate the complaints that it receives. If an employer retaliates against workers who complain about safety conditions or who participate in an investigation by CalOSHA, the targeted workers have a right to file a retaliation lawsuit against their employers and may be entitled to recover damages.

People have the right to work in relatively safe conditions. Employers are required to follow the regulations that are enforced by CalOSHA. Employers must do multiple things to protect the safety of their employees, including the following:

• Follow the state's safety and health laws.
• Post the CalOSHA poster prominently in the workplace.
• Have an effective, written plan for protecting workers from injuries.
• Remain aware of hazards in the workplace and keep records of training employees about the hazards.
• Fix any hazard that could potentially injure workers.
• Notify CalOSHA about any serious injury, serious illness, or death that happens because of workplace conditions.
• Not allow workers to perform work that violates CalOSHA's standards.
• Not allow workers to be exposed to hazardous substances.
• Not allow untrained workers to do hazardous work.

There are also special rules for employers that have employees work around hazardous substances. The employees must receive safety data sheets about the hazardous chemicals that are being used and receive training in how to use them safely.The CalOSHA poster also outlines the rights of workers, including the following:

• Right to file confidential complaints and to ask for an inspection
• Right to tell a CalOSHA inspector who is visiting the workplace about unsafe conditions
• Right to refuse to perform work in violation of safety regulations
• Right against retaliation

The rights of employees are further covered by Cal. Labor Code §§ 6310 - 6311.

The rights of workers against retaliation after they file complaints, request inspections, or participate in an investigation are found in Cal. Labor Code § 6310. This statute reads as follows:

§ 6310."
(a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following:

(1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.

(2) Instituted or caused to be instituted any proceeding under or relating to his or her rights or has testified or is about to testify in the proceeding or because of the exercise by the employee on behalf of himself, herself, or others of any rights afforded him or her.

(3) Participated in an occupational health and safety committee established pursuant to Section 6401.7.

(4) Reported a work-related fatality, injury, or illness, requested access to occupational injury or illness reports and records that are made or maintained pursuant to Subchapter 1 (commencing with Section 14000) of Chapter 1 of Division 1 of Title 8 of the California Code of Regulations or exercised any other rights protected by the federal Occupational Safety and Health Act (29 U.S.C. Sec. 651 et seq.), except in cases where the employee alleges he or she has been retaliated against because he or she has filed or made known his or her intention to file a workers' compensation claim pursuant to Section 132a, which is under the exclusive jurisdiction of the Workers' Compensation Appeals Board.

(b) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has made a bona fide oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative, of unsafe working conditions, or work practices, in his or her employment or place of employment, or has participated in an employer-employee occupational health and safety committee, shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Any employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.

(c) An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has or is perceived to have engaged in any acts protected by this section.

(d) For purposes of this section, "employer" or "a person acting on behalf of the employer" includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400."

This statute prohibits employers from firing or discriminating against employees in any way because they did any of the following:

• Filed a complaint with CalOSHA
• Requested an investigation
• Participated in a proceeding
• Testified in a proceeding
• Participated in a committee for occupational safety and health
• Reported a work-related illness, injury, or death
• Asked for access to occupational illness or injury reports

The prohibition against retaliation contained in the statute forbids employees from firing or discriminating against an employee for engaging in one of the above-listed actions in any other way. Discriminating against a worker can include any adverse action that the employer takes against the worker out of retaliation, including denying a promotion, disciplining the employee, demoting the employee, cutting the employee's pay or hours, transferring the employee to an undesirable shift or job, laying off the employee, or firing the employee.Employees who are retaliated against in violation of the statute have the right to be reinstated to their former positions and to receive back pay for their lost wages and benefits. Employers that refuse to rehire, promote, or restore the workers to their positions after they have been found to violate the prohibition against retaliation are guilty of committing misdemeanor offenses.

Employees have a right to refuse to perform dangerous work that would violate the state's safety regulation. Under Cal. Lab. Code § 6311, workers are also protected against retaliation for refusing to perform dangerous work. This statute reads as follows:

§ 6311. "No employee shall be laid off or discharged for refusing to perform work in the performance of which this code, including Section 6400, any occupational safety or health standard or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or his or her fellow employees. Any employee who is laid off or discharged in violation of this section or is otherwise not paid because he or she refused 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 shall have a right of action for wages for the time the employee is without work as a result of the layoff or discharge."

Under this statute, employers cannot fire or lay off a worker for refusing to perform work that would violate the state's safety regulations and laws when the work would create a real danger to the worker or his or her coworkers. Employees who are discharged or laid off in retaliation for refusing to perform the hazardous work are entitled to recover the lost wages that he or she would have earned during the time that he or she was fired or laid off.

Workers in California have a right to file a complaint about unsafe working conditions without fear of retaliation by their employers. When employers retaliate against employees for engaging in protected activities for workplace health and safety, the employees have a right to file claims against their employers for damages. If you believe that your employer illegally retaliated against you for complaining about workplace safety conditions or for participating in an investigation, contact the law firm of Steven M. Sweat, APC by calling us at 866.252.0735.