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Whistleblower retaliation: Wrongful termination under Labor Code § 6310

by | Nov 17, 2014 | Wrongful Termination |

California public policy supports the safety and well-being of employees in their place of work. To this end, the California legislature passed California Labor Code section 6310. This statute was enacted to protect employees from wrongful termination in retaliation for employee complaints about health and safety in the workplace.

Similar to Labor Code section 1102.5, an employee making a claim under this section must be able to establish that he engaged in a protected activity and faced adverse employment action, while also being able to show a causal link between the activity and adverse action. Not all complaints, however, will be considered a “protected activity” under this statue. In evaluating a potential claim, there are a few important issues to keep in mind.

To be considered a protected activity the employee’s complaint must be a good faith, reasonable belief in the existence of unsafe working conditions and/or practices. Importantly, this does not mean that the workplace must actually be unsafe. This standard was set forth in Hentzel v. Singer Co., 138 Cal. App. 3d 290, 299-300, (Ct. App. 1982), when the Court interpreted the statute as protecting an employee “against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe, whether or not there exits at the time of the complaint an OSHA standard or order which is being violated.”

The employee’s complaint cannot merely be part of his or her regular duties or job description. So if, for example, an individual’s job is to find and report on potential safety hazards on the job site, these reports will not necessarily be considered a protected activity under the statute. The same holds true for actions undertaken at the behest of management. If an employee is instructed by management to make a safety report, it is unlikely that this safety report will be considered a complaint for the purpose of a retaliation claim. In these cases, the common usage of the word “complaint” may be instructive. It is unlikely that an employee would be complaining about health and safety if he is just doing his job or following management’s instructions, so it is also unlikely that this will be considered a protected activity under the Labor Code.

These are just a few of the issues to consider when analyzing a potential retaliation claim under California Labor Code section 6310. There are many other factors that will determine whether or not an employee might be successful in pursuing this type of claim. If you believe you have been wrongfully terminated in retaliation for making a complaint about unsafe working conditions and/or practices, it is important that you consult with an attorney immediately to ensure all of your rights and remedies are protected.

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