Many wrongful termination
cases in California are based upon an employer retaliating against an employee who complained and/or refused to work in an unsafe and/or unhealthy work environment. Workers in California have the right to work in safe and healthy conditions. This right is established statutorily in numerous places in the California Labor Code. § 6400 states that “Every employer shall furnish . . . a place of employment that is safe and healthful therein.” Additionally, § 6402 provides that “No employer shall require, or permit, any employee to go or be in any employment or place of employment which is not safe and healthful.” What constitutes a “safe” place of employment is found under § 6306 which clarifies that “’ safe’ . . . as applied to employment or place of employment mean[s] such freedom from danger to the life, safety, or health of employees as the nature of the employment reasonably permits.” Employers also have a duty to furnish safety devices and safeguards as part of their duty to provide safe and healthy working conditions under Labor Code § 6401. This section also provides that “[e]very employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” The right to safe and healthy working conditions is also a constitutional right in California and has been interpreted as arising from Article 1, Section 1 of the California Constitution, which states that “all people . . . have inalienable rights. Among these are . . . obtaining safety, happiness, and privacy.
Workers in California are Protected from Retaliation when they Complain about Unsafe or Unhealth Working Environments.
Generally, employees are legally protected from retaliation when they complain about workplace safety concerns to their employer. Furthermore, an employee may be protected even when they refuse to work in unsafe conditions. The California Labor Code § 6311 states that “no employee shall be laid off or discharged for refusing to perform work . . . where the violation would create a real and apparent hazard to the employee or their fellow employees.”
An employee can refuse to work, if there is an actual unsafe condition, and if:(1) they have asked their employer (if it is feasible to ask) to correct the unsafe conditions and they have not, (2) there is not enough time for the issue be corrected through normal channels, (3) a reasonable person would believe there is a risk of death or serious injury, and (4) the employee in good faith believes there is a risk of death or serious injury. If an employee were to be terminated because they complained as delineated above, or refused to work under the conditions above, the employee may have a wrongful termination case. An experienced employment law attorney should be contacted to analyze the situation, so your rights are protected.
Recently, workers’ rights to safe working conditions have been expanded in California. California Labor Code § 1139, was signed into law by Governor Gavin Newsom on Sept. 29, 2022, and became effective on Jan. 1, 2023. The law gives workers the right to be free from adverse action for refusing to report to, or for leaving, their worksite in the event of an emergency. Under this law, an emergency is defined as “conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act.” A “health pandemic” is explicitly excluded from the definition of emergency under this statute, and so an employee could not leave their worksite for fear of COVID-19. However, other laws may provide a legal basis for protection depending on the circumstance, which is related to COVID-19. Labor Code § 1139 also contains exceptions for first responders, disaster service workers, those healthcare personnel who provide direct patient care during an emergency, etc. In practice, this means that if there is an emergency at your workplace you have the right either to leave your workplace or not report to your workplace in the first place. Labor Code § 1139 is complicated, so always consult with an experienced employment attorney
to understand your rights under this law or to determine whether other laws apply to your individual situation.
If you are leaving your workplace or refusing to report to work pursuant to Labor Code § 1139, you must notify your employer before you leave if it is feasible to do so; if it is not feasible, you must notify your employer of the emergency condition as soon as it is possible for you to do so. However, there is an important carve out in the law. Because “disaster service workers as defined by Government Code Section 3101” are specifically exempted from the law and the relevant code defines “disaster service workers” as all public employees, the above law will not apply to you if you are a public employee. Moreover, the right of workers to refuse to work in unsafe conditions may be protected by other laws, so a public employee may still be protected when they refuse to work in unsafe conditions despite their exclusion from Labor Code § 1139. Labor Code § 1139 also provides that an employer cannot prevent or discourage an employee from accessing their mobile device to seek emergency assistance, assess the safety of the situation, or communicate with others to verify their safety. The prohibition against an employer preventing an employee does apply to public employees, unlike the other provisions of the bill and so public employers cannot prevent a public employee from using their phone during an emergency.
If you are dealing with unsafe or unhealthy conditions at work, it is important to contact an experienced employment law attorney to understand your rights and learn how to preserve them in case litigation is required.