Employers cannot retaliate against an employee who complains about workplace discrimination or files a worker's compensation claim. Retaliation can include firing, demoting, poorly evaluating or otherwise harassing an employee. In California, the state’s Department of Industrial Relations, or DIR, investigates allegations of retaliation and determines if retaliation occurred. Employers have certain rights and must fulfill certain responsibilities after an employee alleges that retaliation has occurred.
From the day the retaliation occurs, employees have six months to file a complaint with the California Department of Industrial Relations. Employees who believe that the retaliation occurred as a result of their being the victim of domestic violence and/or sexual assault have 12 months to file a complaint. The Retaliation Complaint Investigation Unit, or RCI, will investigate the complaint, hold a hearing if necessary, and determine if the complaint has merit. It may go without saying, but at no point after the employee alleges retaliation took place, even if the complaint proves untrue, can the employer take further action.
The RCI investigator will talk to the employee, to the employer and to any witnesses about the alleged retaliation. The employer must cooperate during the investigation, such as agreeing to talk to the investigator or attend a settlement conference. The RCI investigator can subpoena an employer who refuses to cooperate, provide requested information, or agree to an interview. If the employer and employee cannot settle the issue, then the investigator forwards her findings to the Labor Commissioner.
After reviewing the investigator’s findings, the Labor Commissioner can decide to hold a hearing. Both parties can bring representation to the hearing, such as an attorney or union representative. Both parties can also subpoena witnesses and documents for the hearing. The hearing officer will issue subpoenas on behalf of the employer and employee. Anyone subpoenaing a witness must pay witness fees or the witness doesn’t have to respond to the subpoena. At the end of the hearing, during which both sides may be asked to answer questions, the hearing officer will file a summary of findings with the Labor Commissioner.
The Labor Commissioner will review the investigator’s or hearing officer’s findings and issue a determination. If the commissioner determines that retaliation occurred, she will spell out how the employer needs to remedy the situation. Employers have 10 days to take action to remedy the situation or appeal the determination. The Labor Commission will pursue legal action against employers who neither appeal nor remedy the situation.
Employers and employees who do not agree with the Labor Commissioner’s determination have 10 days to file an appeal with the Director of the Department of Industrial Relations. The appeal must include why the ruling is unjust or unfair and any applicable information that supports a reversal. The Director gives both sides a chance to respond to the appeal and will then issue a decision.
- U.S. Equal Employment Opportunity Commission: Retaliation
- State of California Department of Labor Relations: How To File a Retaliation/Discrimination Complaint
- State of California Department of Labor Relations: Retaliation Complaint Unit -- Employers
- State of California Department of Labor Relations: Retaliation and Discrimination Complaints -- A Summary of Procedures
William Henderson has been writing for newspapers, magazines and journals for more than 15 years. He served as editor of the "New England Blade" and is a former contributor to "The Advocate." His work has also appeared on The Good Men Project, Life By Me and The Huffington Post.