California Legislative Information: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=LAB&division=3.&title=&part=&chapter=2.&article=4.
DLSE Information Link Here: https://www.dir.ca.gov/dlse/RetaliationComplaintProcedure.htm
Q&A’s Provided by the Division of Labor Standards Enforcement
Employees, former employees, and applicants for employment who suffer retaliation or discrimination by their employer because they engaged in an activity protected by a law under the jurisdiction of the Labor Commissioner may file a complaint with the Labor Commissioner’s Office. The Labor Commissioner’s Office is also known as the Division of Labor Standards Enforcement or DLSE. A summary of procedures used by the Labor Commissioner’s Office to investigate complaints under Labor Code section 98.7 is described below.
In the event your address or contact information changes during the investigation it is important that you notify our office. This requirement applies to employees as well as employers.
Retaliation occurs when an employee engages in an activity protected by law and then suffers an adverse employment action as a result of that protected activity. Adverse actions may include such things as discharge, demotion, suspension, reduction in pay or hours, refusal to hire or promote, immigration related threats, and other adverse employment actions.
The retaliation complaint form can be completed and filed on-line or a paper form (RCI 1) may be used to prepare a retaliation complaint. The paper form may be obtained by calling or visiting any Labor Commissioner’s Office or it can be downloaded.
When preparing a complaint, enter all of the information that is requested on the form in the spaces provided. Sign and date the completed paper form. Copies of any supporting documents may be submitted as attachments, but cannot be used instead of a completing the complaint form. Do not submit original documents, retain the originals for your records.
In most cases, an employee, former employee, or job applicant alleging retaliation under a law within the jurisdiction of the Labor Commissioner must file the complaint with the Labor Commissioner’s Office within six months of the adverse action.
There are a few exceptions to the six-month deadline. A complaint alleging retaliation against a victim of domestic violence, stalking, or sexual assault (Labor Code section 230(c), 230(e), 230(f), or 230.1) must be filed within one year of the adverse action. A complaint alleging retaliation against a victim of a crime (Labor Code section 230.2(b) or 230.5) must be filed within one year of the adverse action. A complaint alleging retaliation for complaining about a violation of licensing regulations or other laws related to child day care facilities (Health and Safety Code Section 1596.881) must be filed within 90 days after the adverse action. A complaint alleging retaliation against a minor must be filed within the applicable period, but the start of that period is delayed until the minor is 18 years old (Labor Code section 1311.5).
A pay disparity complaint alleging that a worker was paid less for substantially similar work than an employee of the opposite sex, or another race or ethnicity (Labor Code section 1197.5) must be filed within two years of the alleged violation or within three years of a willful violation. However, a retaliation complaint alleging that a worker was punished for asking about a lower rate of pay must be filed within six months.
Additionally, any employee, former employee, or job applicant who alleges retaliation for having complained about a workplace health or safety issue has a separate right to file a concurrent complaint with federal OSHA within 30 days of the adverse action.
The retaliation complaint form (RCI 1) can be filed in person at any local Labor Commissioner’s Office. The form can also be filed by mailing it to either of following locations:
Labor Commissioner
Retaliation Complaint Investigation Unit
2031 Howe Ave., Ste. 100
Sacramento, CA 95825
Labor Commissioner
Retaliation Complaint Investigation Unit
320 W. Fourth St., Ste. 450
Los Angeles, CA 90013
When a form is filled in online, the form is automatically submitted to the Labor Commissioner’s Office after the Submit button is successfully clicked on the last page of the online form.
After the complaint is filed, it will be reviewed and preliminary information will be gathered to determine whether the Labor Commissioner has jurisdiction over the issues raised. If it is determined that the Labor Commissioner has jurisdiction, the complaint will be accepted for investigation.
After the complaint has been accepted for investigation, the employee, former employee, or job applicant will be contacted by a Deputy Labor Commissioner in the Retaliation Complaint Investigation Unit. The Deputy Labor Commissioner will be your primary contact person and will conduct the investigation into the complaint. The investigator is a neutral fact-finder. The investigator does not represent either party at any time during the investigation. The investigator cannot provide legal advice to any party.
Labor Code section 98.7 requires the investigator to interview the worker, the employer, and relevant witnesses, individuals who possess information regarding the alleged violations. To protect the identity of non-management witnesses, the investigator cannot confirm or deny who is actually interviewed. Such witnesses are confidential and may not be disclosed to either party.
The investigator may request the parties meet in a conference in furtherance of the investigation and to explore settlement. Cooperation by both parties is essential to ensure that all available facts are uncovered in the investigation. The Retaliation Complaint Investigation Unit has the authority to issue subpoenas to obtain evidence related to the case. Information obtained during the investigation is subject to Public Records Act requests, and therefore is not confidential. However, the identity of witnesses shall remain confidential, unless disclosure is required for a civil action filed by the Labor Commissioner.
When a complainant files a pay disparity complaint under the Equal Pay Act (EPA), Labor Code section 1197.5, the investigator will not disclose the complainant’s name until the validity of the complaint is determined, unless disclosing the name becomes necessary to investigate the complaint. The complainant’s name will remain confidential if the complaint is withdrawn before the name is disclosed.
The individual who filed the claim, the complainant, is required to make themselves available for interviews. In a typical investigation, the complainant is interviewed two or three times. There is an initial interview to establish the fundamentals of a retaliation claim, or prima facie case. Often times the investigator will schedule an additional interview to review the employer’s response. It is essential that the complainant participate in interviews. Letters or emails are not sufficient to adequately test the allegations or to evaluate the employer’s version of events. If the individual refuses the initial interview, the case will be closed for lack of cooperation. In the event subsequent interview requests are refused, the investigator will determine whether there is sufficient evidence to proceed or if the case will be closed for lack of cooperation.
In a very limited number of cases, and at the sole discretion of the Retaliation Complaint Investigation Unit, the Labor Commissioner may order a hearing to establish the relevant facts before concluding the investigation. The hearing is an informal, investigative proceeding. A hearing officer conducts the hearing, and both sides may bring an attorney, union representative, or other person of their choice to represent them.
The Labor Commissioner may subpoena witnesses and documents for the hearing. If the Labor Commissioner issues a subpoena requested by a party, that party is required to pay applicable witness fees. After the hearing, the hearing officer will file findings of fact and conclusions as part of the investigation.
Once the investigation is complete, if no settlement has been reached, the investigator will prepare an investigation report that will be submitted to the Labor Commissioner or other designee to make a determination.
The Labor Commissioner will review the investigative report and send the parties a determination letter; the letter will outline the evidence established during the investigation and report the findings of the investigation.
If the Labor Commissioner determines that the employer violated the law by retaliating against the employee, former employee, or job applicant, the employer will be given 30 days to comply with the order in the determination letter and remedy the retaliation, or attempt to settle the case.
In cases where the Labor Commissioner has determined that sufficient evidence exists to support a finding of retaliation, the Labor Commissioner may order a variety of remedies including reinstatement, payment of lost wages, interest on the lost wages, removal of related negative reports in the employee personnel file, and the posting of a notice acknowledging the retaliation.
In addition, Labor Code sections 98.6 and 1019.1 provide for a penalty amount of up to $10,000 per violation, payable to the worker if the evidence establishes retaliatory conduct by the employer. Other penalties may be assessed for violations of the Healthy Family, Healthy Workplace statute and Labor Code sections 1311.5 and 2814. For employers that are corporations and limited liability companies, Labor Code section 1102.5 provides for an additional penalty of up to $10,000 for each violation of that section. This penalty is payable to the State.
If the employer fails to comply with the requirements of the determination letter in the time required, an attorney for the Labor Commissioner will file a court action to enforce the determination letter and collect the assessed damages and penalties. The employer may also be held responsible for the Labor Commissioner’s attorney’s fees.
If the Labor Commissioner determines that there is insufficient evidence of retaliation, the Labor Commissioner will dismiss the case and take no further action. The employee, former employee, or job applicant may file a civil complaint against the employer to pursue the matter further.
Complaints alleging violation of Labor Code section 6310 or 6311 (related to workplace health and safety) include appeal rights for the worker if the Labor Commissioner dismisses the complaint for insufficient evidence of retaliation. There is no appeal right under these provisions for the employer. The worker’s right to appeal is required by federal OSHA, and the Labor Commissioner’s Office is required to provide the same appeal right for violations of Labor Code section 6310 and 6311. The appeal is made to the Director of Industrial Relations. In the appeal, the worker must state the grounds for the appeal and the reason the decision is unjust or unlawful. Every issue to be considered by the Director must be identified. The Director will provide all parties with a copy of the appeal, allowing an opportunity to respond. The worker must file the appeal within 15 days of the date of receipt of the determination letter. The appeal must be filed in writing and mailed to the Director of the Department of Industrial Relations at:
Office of the Director – Legal Unit, RCI Appeals
1515 Clay St., Ste. 701
Oakland, CA 94612
For individuals who have filed complaints under Labor Code sections 6310 and 6311, in addition to the appeal right discussed above, any party to a complaint alleging retaliation for complaining about a workplace health and safety issue has the right to file a Complaint Against State Program Administration (CASPA) with federal Occupational Safety and Health Administration (OSHA). In this complaint to OSHA, an individual who is not satisfied with the procedures followed in the Labor Commissioner’s investigation may request that federal OSHA review the case file to ensure the case was appropriately investigated. A CASPA complaint can only be filed after appeal rights with the State have been exhausted. A CASPA complaint is filed at:
U.S. Department of Labor - OSHA
Attention: Area Director
Ronald Dellums Federal Building
1301 Clay St., Ste. 1080N
Oakland, CA 94612
If you have questions regarding investigation procedures followed by the Labor Commissioner’s Office, please contact the Retaliation Complaint Investigation Unit by calling (916) 263-2991, or by email at retaliation@dir.ca.gov. If you have questions regarding a retaliation claim based on workplace health and safety (OSHA), please call (714) 558-4913, or email OSHAretaliation@dir.ca.gov.
DLSE Informational Link Here: https://www.dir.ca.gov/dlse/faq_deductions.htm
Q&A’s Provided by the Division of Labor Standards Enforcement
Printer friendly version An employer can lawfully withhold amounts from an employee's wages only: (1) when required or empowered to do so by state or federal law, or (2) when a deduction is expressly authorized in writing by the employee to cover insurance premiums, benefit plan contributions or other deductions not amounting to a rebate on the employee's wages, or (3) when a deduction to cover health, welfare, or pension contributions is expressly authorized by a wage or collective bargaining agreement. Labor Code Sections 221 and 224. Although a wage garnishment is a lawful deduction from wages under Labor Code section 224, an employer cannot discharge an employee because a garnishment of wages has been threatened or if the employee's wages have been subjected to a garnishment for the payment of one judgment. Labor Code Section 2929(a) (See How to file a discrimination complaint)The ability of an employer to deduct amounts from an employee's wages due to a cash shortage, breakage, or loss of equipment is specifically regulated by the Industrial Welfare Commission Orders and limited by court decisions. (Kerr's Catering v. Department of Industrial Relations (1962) 57 Cal.2d 319). In addition, there have been several court decisions that significantly restrict an employer's ability to take an offset against an employee's wages. Barnhill v. Sanders (1981) 125 Cal.App.3d 1, (Balloon payment on separation of employment to repay employee's debt to employer is an unlawful deduction even where the employee authorized such payment in writing); CSEA v. State of California (1988) 198 Cal.App.3d 374 (Unlawful to deduct from current payroll for past salary advances that were in error); Hudgins v. Nieman Marcus (1995) 34 Cal.App.4th 1109 (Deductions for unidentified returns from commission sales unlawful.)Some common payroll deductions often made by employers that are unlawful include: a. Gratuities. An employer cannot collect, take, or receive any gratuity or part thereof given or left for an employee, or deduct any amount from wages due an employee on account of a gratuity given or left for an employee. Labor Code Section 351 However, a restaurant may have a policy allowing for tip pooling/sharing among employees who provide direct table service to customers.b. Photographs. If an employer requires a photograph of an applicant or employee, the employer must pay the cost of the photograph. Labor Code Section 401c. Bond. If an employer requires a bond of an applicant or employee, the employer must pay the cost of the bond. Labor Code Section 401d. Uniforms. If an employer requires that an employee wear a uniform, the employer must pay the cost of the uniform. Labor Code Section 2802, Industrial Welfare Commission Orders, Section 9. The term "uniform" includes wearing apparel and accessories of distinctive design and color.e. Business Expenses. An employee is entitled to be reimbursed by his or her employer for all expenses or losses incurred in the direct consequence of the discharge of the employee's work duties. Labor Code Section 2802f. Medical or Physical Examinations. An employer may not withhold or deduct from the wages of any employee or require any prospective employee or applicant for employment to pay for any pre-employment medical or physical examination taken as a condition of employment, nor may an employer withhold or deduct from the wages of any employee, or require any employee to pay for any medical or physical examination required by any federal or state law or regulation, or local ordinance. Labor Code Section 222.5
There is an exception to the foregoing contained in the Industrial Welfare Commission Wage Orders that purports to provide the employer the right to deduct from an employee's wages for any cash shortage, breakage or loss of equipment if the employer can show that the shortage, breakage or loss is caused by a dishonest or willful act, or by the employee's gross negligence. What this means is that a deduction may be legal if the employer proves that the loss resulted from the employee's dishonesty, willfulness, or grossly negligent act. Under this regulation, a simple accusation does not give the employer the right to make the deduction. The DLSE has cautioned that use of this deduction contained in the IWC regulations may, in fact, not comply with the provisions of the California Labor Code and various California Court decisions. Furthermore, DLSE does not automatically assume that an employee was dishonest, acted willfully or was grossly negligent when an employer asserts such as a justification for making a deduction from an employee's wages to cover a shortage, breakage, or loss to property or equipment.
If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.
At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties.
Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner's hearing will not be the basis for the court's decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.