San Francisco Employment Law Firm Blog
Under California Labor Code section 232.5(c): “No employer may … discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer’s working conditions.” It is not uncommon for employers to become unhappy about their employees complainign about safety issues at worksite or lack of regulatory approval to complete a certain project, as illustrated in Zirpel v Alki David Productions, Inc. (2023). The burden of proof for section 232.5 is “substantial motivating reason”. In other words, the employee doesn’t have to prove that their complaints about working conditions were the only reason for termination, as long as it was one key reason.
This is particularly helpful to victims of retaliations in situations where a protected complaint is followd by a hostile verbal exchange between the complaining employee and employer before actual retaliatory discipline or firing occur. In these types of cases the employer will often argue that the employee was terminated not in retaliation for making that complaint but due to subsequent “verbal violence” or “insubrodination.” The employee will then have the opportunity to show that his complaints were a major factor that lead to retaliation because, for instance, workplace arguments weren’t considered serious offenses by the employer before, based on the employer’s previous ways of handling such issues. Evidence of prior verbal conforntations with the same manager who ended up not punishing the employees or punishing them more leniently can be used as one type of evidence to show that the true reason for termination was making of those work conditions complaints.