Silver Taube: California must lead on retaliation reforms to dismantle workplace inequality

Retaliation against workers who speak up when they have had their workplace rights violated through wage theft, sexual harassment or other unlawful abuses is prevalent in California. It functions to undercut all of California’s labor laws, turning our strong, clear legal standards into an inconsistent mess in the reality of workplace interactions.

Retaliation takes many shapes and can be difficult to prove. Employers may fire a worker, demote a worker, reduce a worker’s hours, change a worker’s schedule to a less favorable one, transfer the worker, deny a promotion or raise, unfairly discipline a worker, threaten to report a worker or a worker’s family member to immigration authorities, or blacklist workers from future employment.

On Nov. 2, the National Employment Law Project and the California Coalition for Worker Power released a report entitled “How California Can Lead on Retaliation Reforms to Dismantle Workplace Inequality.” The report was shaped by workers sharing their experiences of retaliation in a statewide survey and worker focus groups. The focus groups in Santa Clara County included workers from the Santa Clara County Wage Theft Coalition, the Pilipino Association of Workers and Immigrants (PAWIS), the Day Worker Center of Mountain View and Fight for $15.

The report contains a statement by a car wash worker who experienced retaliation.

“During my time working at a car wash, an investigation began by the State of California to look into the conditions of work at the business,” they said. “At this car wash, we did not have fixed hours of work. We were asked to arrive early and wait in an alley for work, sometimes for hours. We were never paid for the time. I shared what was happening at the car wash with the investigators. That was why they fired me.”

The car wash worker is not alone. The report’s alarming results reveal the prevalence of retaliation in California and workers’ failure to report violations because they fear retaliation:

• 38% of California workers have experienced a workplace violation.
• Only 10% of those workers reported them to a government agency, and 47% did not report violations to anyone.
• Of the workers who reported violations, 54% experienced employer retaliation.
• 51% of working Californians said that concern about employer retaliation would influence their decision about whether to report a workplace violation in the future.

The report also examines the financial toll on workers who lose jobs because of retaliation.

According to the report, 40% of California’s workforce would be unable to cover a month or less of regular expenses if they lost their job. Seventy percent reported it would be hard to make their next rent or mortgage payment, with nearly half of those reporting it would be “very” hard. Among survey respondents with prior job losses, 79% also reported significant economic hardship, including the inability to pay bills on time (40%), the need to obtain food from a food bank (20%) and the delay in obtaining health care or medication (22%).

California theoretically has strong anti-retaliation laws, but the practical reality demonstrates we haven’t yet developed laws to prevent it. The truth is that workers take a risk when they stand up for their rights because there is such a stark power imbalance between workers and employers, with no standards for fair treatment or support for workers who speak out. Employers can fire workers for almost any reason—or for pretty much no reason at all—under California’s system of “at will” employment. And employers can and do retaliate against workers who speak up about workplace problems.

Retaliation investigations and litigation can take months or years, and even when an agency or court finally orders an employer to pay a worker, getting an employer to pay presents its own challenge.

The economic hardship that comes with losing a job means that many workers decide it is simply too risky to bring attention to violations.

“Even if it isn’t true, employers say that if you go to the Labor Commission, you won’t be able to find a job,” a worker with PAWIS and the Santa Clara County Wage Theft Coalition said in the report. “The employers have an association and have a blacklist of workers who filed claims. We are not even paid the minimum wage, but we have tons of bills to pay. We don’t have medical insurance. Our priority is remitting money back home, but, with low wages and bills, we don’t have much money to send home.”

The report recommends California’s lawmakers strengthen our anti-retaliation laws by bringing them into harmony and ensuring the same protections exist throughout the labor code. Lawmakers should also take steps to ensure Californians have access to the resources they need to enforce their rights.  Two concrete ideas could accomplish this goal:

• A retaliation fund to provide workers with the immediate economic support they need to exercise their rights.  A retaliation fund would allow a worker who reports a workplace violation to a state agency to access quick, meaningful and one-time financial assistance if their employer retaliates.
• A “just cause” policy, where an employer would have to show that there is a justifiable reason for firing a worker, to protect workers from arbitrary and unfair firings.

The survey showed widespread support among California workers for these policies: More than two in three California workers said access to a hardship fund if they were retaliated against could help them report a future violation to a government agency.  An overwhelming majority of working Californians—92%—support this type of retaliation hardship fund. A large majority of working Californians of all political parties—81%—support laws protecting workers from unfair and arbitrary firings.

The report urges California to lead on new policy ideas to truly shift power toward workers. The state should set an example for the nation and implement these popular policies that will protect workers who speak up about workplace violations.

San José Spotlight columnist Ruth Silver Taube is supervising attorney of the Workers’ Rights Clinic at the Katharine & George Alexander Community Law Center, supervising attorney of the Santa Clara County’s Office of Labor Standards Enforcement Legal Advice Line and a member of Santa Clara County’s Fair Workplace Collaborative. Her columns appear every second Thursday of the month. Contact her at [email protected].