Four employees of a major restaurant franchise in Los Angeles were fired shortly after they had complained about being exposed to the coronavirus due to unsafe working conditions. The four had notified their employer, Cal/OSHA, and the Los Angeles County Health Department of their safety concerns, and had participated in strikes over safe working condition. Shortly thereafter, their employer terminated them, and the four filed complaints with the California Labor Commissioner.
The Labor Commissioner issued citations including $80,000 in retaliation penalties, $45,193 in lost wages, and $720 in interest. The citations also named the individual franchisee owners and the franchisee human resources officer as jointly and severally liable.
Labor Commissioner Lilia García-Brower said in a statement, “Too many workers fear retaliation if they report a problem or stand up for their rights. California law has anti-retaliation protections in place that make it illegal for employers to punish workers for exercising their labor rights, such as reporting a workplace safety hazard. My office is committed to ensuring those laws are enforced.”
California employers are subject to many new COVID-19 related requirements, with regard to protecting employees, reporting coronavirus cases, and communicating and enacting a workplace disinfection plan, to name a few. As ever, employers are prohibited from retaliating against employees for raising safety concerns in the workplace, including concerns relating to exposure to the coronavirus.
When an employee does something that is protected by law, such as complaining about working conditions, or taking medical leave or paid sick days, and the employer takes an adverse employment action against the employee relatively soon afterwards, it creates a rebuttable presumption of retaliation. California employees are presumed to be at-will, such that their employment generally may be terminated at any time for any reason, as long as it does not violate public policy. However, when an employer terminates an employee or takes other adverse action after they engaged in protected activity, the burden shifts to the employer to prove that there was a legitimate, non-retaliatory reason for the adverse action. If an employer does this, then the burden shifts back to the employee to prove that the employer’s stated reason was actually pretext for retaliation.
As a best practice, employers will document discipline and performance problems with employees as they occur. This can create evidence to support subsequent terminations, demotions, or other employee discipline, and rebut claims of retaliation and discrimination. Employers can easily document employee issues by sending an internal email with a description of the employee’s conduct, statements, incident, or policy violation. This should create a credible, contemporaneous written record of employee discipline or performance problems with time and date stamps, which can later be easily reproduced. For purposes of rebutting claims of retaliation and discrimination, this type of specific and timely evidence is generally much more persuasive than an employer’s general statements that the employee had long-standing discipline or performance problems, without documentation to back it up.
To read the full news release, please visit: https://www.dir.ca.gov/
For more on avoiding claims for retaliation, discrimination, and harassment, contact Klinedinst’s Employment Law team.
About the Author
Thomas E. Daugherty litigates and counsels clients in employment law, professional liability, and commercial litigation. He brings integrity, vigorous advocacy, and a tenacious work ethic to provide unique solutions to each and every client. His demeanor and approachability keep clients coming back for more, when legal needs arise. To contact Mr. Daugherty, please reach him via email or call (619) 239-8131.
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