“Frankly, Mr. Shankly, this position I've held “It pays my way, and it corrodes my soul.”
-The Smiths
It’s happened again. Your fire-breathing micromanaging supervisor just sent another nastygram detailing your most recent failing, and it’s only 11:00 in the morning. You think again about quitting. You think again about complaining. You’ve never complained, and here’s why: they will retaliate. Yeah, you know about company policies against retaliation, but they’ll find something petty to nitpick, and pretty soon you’ll be out of a job, you just know it.
That kind of thinking is understandable when you’re deep in the trenches of a toxic workplace. It might help to know that in California, employment laws are continually strengthening protections for employees; retaliation for making almost any kind of good faith complaint might be unlawful or just plain stupid. So go ahead. Before you decide to resign, think again about complaining.
Exactly What is Retaliation?
As Supreme Court Justice Potter Stewart famously said about pornography, “I know it when I see it,” and the same could be said about retaliation. California defines retaliation as behavior that, taken as a whole, materially and adversely affects the terms, conditions, or privileges of employment. Suspension and termination are two obvious forms of potential retaliation, but retaliation includes other, more subtle conduct. According to the EEOC, it could be retaliation if an employer acts because of the employee's EEO activity to:
reprimand the employee or give a performance evaluation that is lower than it should be;
transfer the employee to a less desirable position;
engage in verbal or physical abuse;
threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
increase scrutiny;
spread false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or
make the person's work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).
Performance improvement plans are another classic form of retaliation. This Connecticut law firm’s perspective on the dark sides of “PIPs” is a quick interesting read. See Are Performance Improvement Plans (PIPS) Illegal? - Carey & Associates P.C. (capclaw.com). I had a client a dozen years ago who was retaliated against by moving her desk away from everyone else’s and requiring her to write down her whereabouts on a blackboard throughout the day. Retaliation is only limited by an angry supervisor’s imagination. But read on. It’s unlawful in a lot of cases.
California Laws Prohibiting Retaliation
1. Harassment or Discrimination Complaints.
The Fair Employment and Housing Act (“FEHA”) prohibits retaliation against any person for making a complaint under the FEHA, for helping another in making such a complaint, or for opposing any action in the workplace that would constitute a violation of the FEHA. Under FEHA, employees, prospective employees and contractors are protected from harassment and discrimination on the basis of a protected category such as race, ancestry, national origin, religion, age (40 and over), disability, gender (including pregnancy, childbirth, breastfeeding or related medical conditions), sexual orientation, gender identity, medical condition, marital status, and military or veteran status.
2. Whistleblowers.
A statute with broad effect, California Labor Code Section 1102.5, the “whistleblower statute,” makes it unlawful for an employer to retaliate against an employee who “reports” suspected violations of law or regulations or because the employer believes the employee disclosed or may disclose information to a government or law enforcement agency. Law section (ca.gov). See WHISTLEBLOWERS ARE PROTECTED (ca.gov). The “report” doesn’t have to be to a governmental agency; it’s enough that the employee reports it to a supervisor. As an example of the teeth in this statute, in 2017 a Sonoma State facilities employee was awarded a total of nearly $11,000,000[1] by a special jury verdict which found that he was retaliated against under 1102.5 (and other statutes) for cautioning his supervisor about lead paint and asbestos hazards on campus. See Sonoma State asbestos whistle-blower wins verdict in civil case (pressdemocrat.com)
3. Bullying Complaints.
California employers have been voluntarily adopting anti-bullying policies (See Meta's anti-bullying policy: Responding to Workplace Complaints | Meta (facebook.com). Anti-bullying policies aren’t “law” in California and don’t entitle employees to file lawsuits when the policies are violated. However, if an employer has such a policy and an employee is retaliated against for complaining about bullying, the employee may have a right to sue under Labor Code Section 232.5, which prohibits retaliation for discussing or disclosing working conditions.
4. Mandated Reporting.
Under the Child Abuse and Neglect Reporting Act (CANRA), the State of California has identified certain individuals as mandated reporters, including teachers, school administrators, medical personnel, and some human resources staff. If an individual fails to report an act of child abuse, or of suspected child abuse, he or she could be held liable for any injuries sustained by a child. Retaliation by an employer against a mandated reporter for reporting under the law is provided by California Labor Code Section 1106.
5. Other Complaints.
For an exhaustive list of regulations that prohibit retaliation in the employment context, see Laws that Prohibit Retaliation and Discrimination (ca.gov). The list includes retaliation for:
filing or threatening to file a claim or complaint with the Labor Commissioner;
complaining about health or safety conditions;
refusing to violate health and safety regulations;
expressing an opinion regarding an alternative workweek election;
using sick leave, attempting to use accrued sick leave, filing a complaint regarding sick leave, alleging a violation of paid sick leave rights;
talking about and/or disclosing wages.
Informed Companies Know It's Not Good Business Practice to Retaliate Against Disgruntled Employees.
One reason not to fear making a complaint is because employment practices in California have evolved in the last several years towards greater employee protections. Given the tight labor force and increasing competition for skilled workers, see Return to work: Nearly half of US companies adding office perks to attract employees back, avoid burnout, survey finds - ABC7 San Francisco (abc7news.com), informed employers competing for employees in a competitive market know it’s counterproductive to retaliate. Retaliation can get an employer into complex, expensive legal trouble. Retaliation leads to lawsuits, negative publicity, and large jury verdicts. [See Insurer Gets Hit With $155 Million Jury Verdict For Retaliation (forbes.com)]. Some lawyers wisely counsel their employer clients to avoid an appearance of retaliation against an employee who registers an internal workplace complaint.
What I am suggesting in a roundabout way is that things might actually get better if you complain about that thing that is making your stomach churn at 2:00 in the morning. Complaining has a way of accelerating events, and events lead to outcomes.
When is it Time to Complain?
1. When nothing you’ve tried seems to be working. You’ve tried everything to pacify your supervisor, and s/he isn’t satisfied with your work. Or, if it is a violation of law that is troubling you, you keep hoping it will stop but it doesn’t. You’re thinking regularly about quitting, and you worry about getting fired. Your stomach is in perpetual knots. If you believe that the reasons for your supervisor’s unhappiness aren’t truthfully related to the quality of your work but based instead on an unlawful reason (see above), or that the events you witness on a regular basis are truly against both the company’s moral compass and probably against the law, reporting is the best way to place the company on notice of your intentions and protect your employment status at the same time. I do not in any way recommend complaining when the only reason for the complaint is to shift attention away from legitimate performance concerns. However, juries punish employers who retaliate against employees whose concerns are raised in good faith.
2. Look at the company’s policies to decide where to report the conduct. Where to report is dependent on the size and organization of your employer. If there is no direct guidance in the employee manual or online personnel policies, reporting to HR is a good place, but not necessarily the best place, to start. It all depends on your company’s organizational structure and how your HR department is viewed. Consider cc-ing other departments when you first make contact HR and follow up on until the issue is resolved –or it becomes clear it won't resolve without an attorney.
3. What should I report? Take a day or even two to draft a clear, concise, chronological, statement about what’s going on. Have someone you trust read it over. Proofread before sending. Your report may be the first contact you will have with the company’s HR or EEO department. First impressions count. Be factual, not emotional. I have to say it again: be factual, not emotional. I review draft internal complaints all the time, free of charge: contact me at judithcwolff@legalemploymentsolutions.com.
4. Should I send documents when I first submit a written complaint? Only if the documents clearly reflect inappropriate/unlawful behavior without having to understand context. Otherwise wait for an investigator to ask for documents. Examples of documents you do want to include with your initial complaint are those that are obviously sexual, criminal, or threatening in nature.
5. How Long Should I Wait for a Response? If you haven't heard anything within one week, considering sending another email, making a phone call, or sending your initial complaint to someone other than the first person you sent it to. You don’t want to be aggressive, but assertiveness is essential.
Conclusion
Although there are no guarantees of a successful outcome, clients talk about the relief that occurs after hitting send on an internal complaint, the feeling that they have gotten something important off of their desk and chest, and onto someone else’s.
Contact me with employment questions. The consultation is free of charge. judithcwolff@legalemploymentsolutions.com.
[1] Affirmed on appeal.