Pursuant to California employment law some complaints made by an employee to their employer about illegal activity or conduct, may be considered “legally protected activity.” “Legally protected activity” means activity by an employee that an employer is legally prohibited from discriminating or retaliating against the employee for doing. Sometimes complaining about unlawful conduct by an employer is called “whistleblowing.” An example of whistleblowing could be when an employee complains to their management about certain safety violations in the workplace, which the employer will not correct. In California, if the complaints about safety was made in good faith, then the employee should be legally protected from retaliation.
Unfortunately however, it happens all too often that employees complain to their employer about some form of illegal activity, and then get fired, but the complaint was only made orally. Remember, if an employee only complains about unlawful conduct orally, the employee will likely reap the same amount of retaliation from your employer, but have no proof that he/she actually complained. If you sue an employer for unlawful retaliation, expect that the employer is going to lie about anything and everything that it believes it can get away with. Most likely, if the employee’s complaint is not in writing, and the employer believes it can get away with denying the complaint was ever made, the employer will lie and claim the complaint never occurred.
In California, when an employee complaints about illegal activity such as sexual harassment, racial discrimination, failure to accommodate them for their disabilities, not being given rest or lunch breaks, an unsafe work condition, etc., they are likely legally protected from retaliation by their employer. However, in order to prevail in a lawsuit for unlawful retaliation, they will have to be able prove that they actually made a complaint that constituted “legally protected activity.” So if they are going to complain to their employer about unlawful conduct, they should always do it in writing and in a way that they can prove their employer received the written complaint (i.e. fax the complaint and save the proof of transmittal, or email the complaint and save the email). The good news is however, while it is much, much easier to win a retaliation case when the complaint letter is in writing, most good employment law firms have won retaliation cases when the employee made a legally protected complaint orally and there is no complaint letter.
The next important step in making a complaint to an employer that is considered “legally protected activity,” is to only complain in writing about issues that will be considered “legally protected activity.” Remember, not all complaints are legally protected. For example, if an employee complains that their boss is an idiot, and he does not know what he is doing, that is not a legally protected complaint. An employee can legally be fired for complaining or inferring that there boss is an idiot. If an employee is not sure that their complaint is legally protected, then they should always seek the help of an experienced employment law attorney. The employee should try calling an employment law firm to see if they will help them write a complaint letter, which will offer them protection from retaliation. The law is complicated and corporate defense attorneys are cunning, an employee should always get legal help to draft a complaint letter to their employer.
A common mistake employees also make is that their complaint is too general. In California, the Fair Employment and Housing Act (FEHA)
makes it an unlawful employment practice to retaliate against an employee who opposes practices that are forbidden by FEHA. This means that if an employee complains about racial discrimination, sexual harassment, not being accommodated for a disability, or disability discrimination, they are likely legally protected from retaliation. However, all too often an employee means to complain about racial discrimination, but their letter only talks about being treated unfairly, and never states clearly that they believe they are being discriminated against because of their race. An employee’s complaint letter should clearly state what the unlawful conduct is that they are complaining about. The letter should not infer the illegal conduct, but state what the illegal conduct is in clear and concise language. For example, start the letter: “This letter is written to complain about racial discrimination,” or “This letter is written to complain about being sexually harassed.” If the employee states clearly what is the illegal conduct that is being complained about, then latter if a lawsuit is filed, the corporate defense attorney will not be able to twist the facts to successfully argue that the letter was so vague, it is not clear it is a protected legal complaint. Once again, the best way for an employee to avoid having a problematic complaint letter is for the employee to have an attorney review the letter before it is provided to the employer.
In the Los Angeles, California area there are many employment law firms with hotlines that an employee can call and get help when writing a complaint letter. It is common for a discrimination attorney in the Los Angeles area to speak to an employee who needs help writing a complaint letter for free. Many employment law firms are willing to educate the public about their rights, because it is a great way for a Los Angeles employment law firm to attract potential clients. If you call a discrimination attorney in the Los Angeles area to see if you can get some help for free, you may be pleasantly surprised that a qualified discrimination attorney will review your complaint letter at no charge. Call around for discrimination attorney Los Angeles
and it is likely you can find help with your complaint letter at no cost.