Retaliation for Complaining about Workplace Issues to Your Management
Before you complain to your management or HR about any workplace issues you are dealing with or observing, believing that you will be protected by law from retaliation for making those complaints, you should know two important facts about California anti-retaliation laws:
1. Only some complaints are considered protected activities, providing anti-retaliation protection.
Only some complaints and activities are considered "protected" under anti-retaliation laws. These include complaining in good faith about unlawful discrimination or unlawful harassment, complaining about specific safety violations, complaining, protesting or refusing to participate in criminal criminal activity, labor code violations, tax violations, certain federal and state law violations, criminal activity, filing complaints in good faith with various agencies, such as EEOC, DFEH, SEC, OSHA, and DLSE, complaining about sexual or other types of harassment, participating or testifying in a legal proceeding, and a number of other specific violations.
Most other complaints about internal workplace issues are not considered protected activities, even if these are violations of company's own rules and policies. Thus, if you complain to the management about how unfairly your co-workers treat you, or the fact that you don't like how the employer runs their business, or how they evaluate your performance, how the job duties are distributed, unreasonable demands or deadlines, not having proper training, or about certain inefficiencies in your department, and they decide to fire you because they didn't like those complaints, this will not be a valid basis for a retaliation / wrongful termination case. Therefore, you should consult with an employment attorney before making a complaint to better understand what legal protections you will have once you make that complaint, and whether this is the right time to make a complaint in your specific situation.
2. Your complaint must be done in good faith and with some reasonable basis.
You must have some reasonable basis for making a complaint in order for it to be a protected activity. For instance, if you complain about being treated different because of your race, because you suspect this to be the case without any other evidence, that might not be considered complaining in good faith. On the other hand, if you complain about discrimination because of discriminatory remarks against you or against members of your race or because you noticed a clear pattern of exclusion of people of your race from your workplace, this might be sufficient to be a good faith complaint. Remember, you don't have to be correct about your complaints; you only have to have a good faith, reasonable basis for making that complaint. (Yanowitz v L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043). Under California law, belief without any basis that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of making a retaliation case, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging a discriminatory practice. After all, complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct (Id. at 1047). In practice, this means that if you complain to your employer about being bullied, or being treated badly, or being a victim of favoritism without providing more detail, this will not be sufficient to put that employer on notice of any type of unlawful discrimination or harassment.
3. Even if your complaint is considered a "protected activity", your employer can still choose to terminate you, even if it's illegal. In fact, it's quite common.
Many workers mistake the term "protected activity" or "protected complaint" for some kind of immunity. They believe that their employer cannot terminate them after they make a complaint. This is simply not true. Your employer can always choose to violate the law and retaliate / fire you at any time, if they want to. No one can physically force the employer to keep you if they don't want to. If they fire you, and there is sufficient evidence of retaliation / wrongful termination then you can choose to pursue a case against them. In some cases, employers who fire employees are ordered to reinstate them to their position, but this is quite rare.
While some employers want to do their best to not violate the law and have good policies in place against retaliation, many employers are happy to take the risk of retaliating and/or firing an employee illegally for all kinds of reasons, including the fact that they really want that employee out, no matter what it ends up costing them.
1. Only some complaints are considered protected activities, providing anti-retaliation protection.
Only some complaints and activities are considered "protected" under anti-retaliation laws. These include complaining in good faith about unlawful discrimination or unlawful harassment, complaining about specific safety violations, complaining, protesting or refusing to participate in criminal criminal activity, labor code violations, tax violations, certain federal and state law violations, criminal activity, filing complaints in good faith with various agencies, such as EEOC, DFEH, SEC, OSHA, and DLSE, complaining about sexual or other types of harassment, participating or testifying in a legal proceeding, and a number of other specific violations.
Most other complaints about internal workplace issues are not considered protected activities, even if these are violations of company's own rules and policies. Thus, if you complain to the management about how unfairly your co-workers treat you, or the fact that you don't like how the employer runs their business, or how they evaluate your performance, how the job duties are distributed, unreasonable demands or deadlines, not having proper training, or about certain inefficiencies in your department, and they decide to fire you because they didn't like those complaints, this will not be a valid basis for a retaliation / wrongful termination case. Therefore, you should consult with an employment attorney before making a complaint to better understand what legal protections you will have once you make that complaint, and whether this is the right time to make a complaint in your specific situation.
2. Your complaint must be done in good faith and with some reasonable basis.
You must have some reasonable basis for making a complaint in order for it to be a protected activity. For instance, if you complain about being treated different because of your race, because you suspect this to be the case without any other evidence, that might not be considered complaining in good faith. On the other hand, if you complain about discrimination because of discriminatory remarks against you or against members of your race or because you noticed a clear pattern of exclusion of people of your race from your workplace, this might be sufficient to be a good faith complaint. Remember, you don't have to be correct about your complaints; you only have to have a good faith, reasonable basis for making that complaint. (Yanowitz v L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043). Under California law, belief without any basis that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of making a retaliation case, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging a discriminatory practice. After all, complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct (Id. at 1047). In practice, this means that if you complain to your employer about being bullied, or being treated badly, or being a victim of favoritism without providing more detail, this will not be sufficient to put that employer on notice of any type of unlawful discrimination or harassment.
3. Even if your complaint is considered a "protected activity", your employer can still choose to terminate you, even if it's illegal. In fact, it's quite common.
Many workers mistake the term "protected activity" or "protected complaint" for some kind of immunity. They believe that their employer cannot terminate them after they make a complaint. This is simply not true. Your employer can always choose to violate the law and retaliate / fire you at any time, if they want to. No one can physically force the employer to keep you if they don't want to. If they fire you, and there is sufficient evidence of retaliation / wrongful termination then you can choose to pursue a case against them. In some cases, employers who fire employees are ordered to reinstate them to their position, but this is quite rare.
While some employers want to do their best to not violate the law and have good policies in place against retaliation, many employers are happy to take the risk of retaliating and/or firing an employee illegally for all kinds of reasons, including the fact that they really want that employee out, no matter what it ends up costing them.
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