Any employee, who is discharged, threatened with discharge, demoted, suspended, or in any manner discriminated and/or retaliated against in the terms and conditions of his or her employment for engaging in a “protected activity” under the jurisdiction of the labor commissioner may file a complaint with the Division of Labor Standards Enforcement (DLSE). Examples of some protected activities include filing or threatening to file a wage claim with the Labor Commissioner’s office, taking time off to serve on a jury, complaining about a safety or health hazard, and/or refusing to perform work that may be hazardous.
There are specific time limits for filing a complaint for discrimination/retaliation with the DLSE. The majority of the Labor Code Sections and IWC Orders require that the complaint be filed within six months of the discriminatory/retaliatory act. However, certain Labor Code Sections have longer time periods for filing a complaint. Labor Code Sections 230(c) and 230.1 that allow employees who are victims of domestic violence to take time off from work to obtain help or relief have one year from the date of occurrence of the violation to file a complaint. Additionally, Labor Code Section 1197.5 that covers discrimination in the payment of wages on the basis of sex has a two-year period from the date of the discriminatory activity for filing a complaint.
However, when an employee is discriminated/retaliated against for complaining about or reporting violations of the licensing laws relating to child care facilities under Health and Safety Code Section 1596.881, the time period for filing a complaint is no later than ninety day safter the adverse action.
After filing the complaint, the employee will be contacted by a Discrimination Complaint Investigator from the Labor Commissioner’s office. The employee, the employer and witnesses who may have information regarding the case may be interviewed. The investigator will prepare a written report and forward it to the labor commissioner for review. The labor commissioner, after reviewing the written report will issue a decision regarding the complaint based on the facts outlined in the report. For more information and details on how to file a discrimination complaint, the discrimination complaint process, appeal rights and the discrimination complaint form, please contact us.
In some cases, if the labor commissioner feels there is a need to obtain further information, a hearing before a DLSE Hearing Officer may be held. Both the employer and the employee will receive written notification and a copy of the summary of the facts at least five days before the scheduled hearing. This hearing is an informal hearing; however, all parties can subpoena witnesses and documents to support the facts outlined in the written report and may have attorneys, union representatives, or other persons of their choice to represent them at the hearing. The hearing officer will submit a “Findings of Fact and Conclusion” to the labor commissioner within seven days of the hearing.
If after an investigation the labor commissioner dismisses the complaint, the employee has the right to file a separate private court action against the employer. Also, an employee alleging discrimination or retaliation due to any action that involves the federal Occupational Safety and Health (OSHA) regulations has the right to file a complaint with the federal OSHA agency. This complaint can be filed simultaneously with the State Labor Commissioner’s complaint. Employees must, however, file with federal OSHA within thirty days of the adverse action occurring.
Under the anti-discrimination/retaliation statutes, the remedy that is available is what is known as a “make whole” remedy. This remedy can include, but is not limited to; reinstatement of employment, reversal of a demotion, payment of back wages, reinstitution of benefits, purging personnel files of any adverse memos or letters, a cease and desist order, and the posting of a notice in the workplace.
The Information on this page is reprinted from the website of the California Department of Labor Standards Enforcement. It reflects that department’s view of California law (which may or may not be in accord with Federal law or the law of other states) and may or may not reflect the view of this law firm. No action should be taken in reliance on the information provided below without first contacting an attorney.