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Retaliation
/ Discrimination
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. For a list of
the specific anti-discrimination/retaliation statutes/orders
under the jurisdiction of the labor commissioner, click here.
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
days after 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, click here.
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.
**Note: Employees who feel
that they have been discriminated against or harassed because
of their race, religion, sex, color, sexual orientation, national
origin, ancestry, physical handicap, medical condition, marital
status, age (over 40), or request for family leave, should contact
the California Department of Fair Employment and Housing. DFEH's
telephone number within California is 1-800-884-1684 and 916-227-0551
outside of California.
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Q-1.
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Where
do I go to file a discrimination complaint with the labor
commissioner? |
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Ans.
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You
can file a discrimination complaint with any local office
of the Division of Labor Standards Enforcement. Additionally,
you can download, complete, and print the complaint form
off of the Internet (English Spanish Chinese), and file
your form by mailing it directly to the Discrimination
Complaint Investigation Unit at:
Division
of Labor Standards Enforcement
Discrimination Complaint Investigation Unit
2031 Howe Ave., Ste. 100
Sacramento, CA 95825 |
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Q-2.
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How
much time do I have to file a complaint after the occurrence
of the discriminatory/retaliatory act or action against
me by my employer? |
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Ans.
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The
majority of the Labor Code Statutes and IWC Orders allow
six months from the occurrence of the adverse action to
file a complaint with the labor commissioner. If you file
a complaint under Labor Code Sections 230(c) or 230.1,
you have one year to file from the time of the adverse
action. If you file a complaint under Labor Code Section
1197.5, you have two years from the time of the adverse
action. But, if you file a complaint under Health and
Safety Code 1596.881, you have 90 days from the occurrence
of the adverse action to file a complaint. |
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Q-3.
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If
I do not agree with the decision of the labor commissioner,
can I appeal to some other authority? |
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Ans.
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Yes,
you have 10 days to appeal the decision. You must submit
a written appeal and send it to the Director of the Department
of Industrial Relations, Post Office Box 420603, San Francisco,
CA 94142, Attention: Director's Office.
Additionally, a worker alleging discrimination as a result
of activities protected under California Labor Code Sections
6310 and/or 6311 has the right, in the event of dismissal
of their complaint by the labor commissioner, to file
a complaint against the state program with the U.S. Department
of Labor, 71 Stevenson Street, 4th Floor, San Francisco,
CA 94105, Attn: Discrimination Programs. |
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