How California Can Lead on Retaliation Reforms to Dismantle Workplace Inequality

Introduction

“I think of my family. One has to work to survive. In this country and in this state, it is too expensive. Rent, food, everything is very expensive. But it is true that I have seen so much injustice, sometimes it even gives me fear, [but] I think, ‘What job am I going to find?’ because I have seen over the years that in the fast food industry there is a lot of discrimination, wage theft, many injustices that all workers experience. So that’s why I like to participate, because this fear truly has to end. Being able to raise my voice has served a lot to my colleagues. They have followed me, been with me, and they have been able to raise their voices too.” [i]

“After our boss knew that we were taking collective action, she was furious and began to cut our hours, give us the hardest shifts, like the closing shifts, and even fired employees. Retaliation is so common because many immigrant workers don’t know their rights. We need to ensure a safe workplace and protection from retaliation, especially during this pandemic, when restaurant workers have to interact with customers and may be scared to speak up. I hope that other workers will hear our story and learn and protect their rights.” [ii]

Workers across California in sectors such as food service, car wash, and caregiving are coming together to fight for owed wages and safer working conditions. The quotes above come from, respectively, the Fight for 15-led campaign for better conditions in the fast-food industry and a three-year organizing campaign supported by the Chinese Progressive Association and the Asian Law Caucus, which resulted in 22 restaurant workers recovering $1.6 million in stolen wages.

These campaigns are powerful examples of worker action and solidarity. However, there remains a fundamental power imbalance between workers and employers that makes it difficult for workers to raise complaints and take collective action to improve workplace conditions. Because employers can fire workers for almost any reason—or for no reason at all—under California’s system of “at will” employment, workers often experience retaliation when speaking up about workplace conditions. Widespread economic insecurity makes the threat of losing one’s job or income as a result of employer retaliation especially and immediately catastrophic.

To better understand the impact of employer retaliation and at-will firings in California, the National Employment Law Project (NELP) commissioned YouGov to conduct a survey of 1,000 adults in the California workforce in January 2022. The survey sample included workers aged 18-64 across the income spectrum and was representative by age, gender, race, and years of education. Survey responses revealed a high prevalence of workplace violations, low rates of violation reporting, high rates of employer retaliation, and frequent unfair and arbitrary firings.

Key findings include:

• Thirty-eight percent of California workers have experienced a workplace violation.
• Only 10 percent of those workers reported them to a government agency, and almost half (47 percent) did not report violations to anyone.
• Of the workers who reported violations to their employer or to a government agency, a majority (116 of 216 respondents) experienced employer retaliation.
• Fifty-one percent of working Californians said that concern about employer retaliation would influence their decision about whether or not to report a workplace violation in the future.
• More than two in three California workers said access to a hardship fund that would provide them immediate monetary relief if they were retaliated against could help them report a future violation to a government agency.
• An overwhelming majority of working Californians—92 percent—support the establishment of a retaliation hardship fund that would provide one-time financial assistance to workers who file good faith complaints about employer retaliation.
• Forty-one percent of California workers have been fired or let go at some point. Less than one third of those workers (29 percent) said they were given fair warning before being fired, and most (64 percent) said they have never received severance pay.
• More than 40 percent of workers—including 46 percent of Latinx workers and 55 percent of Black workers—said that concern about being fired or disciplined may have prevented them from joining their co-workers to push for job improvements.
• A large majority of working Californians of all political parties—81 percent—support the adoption of laws protecting workers from unfair and arbitrary firings.

This report builds on the survey’s findings to examine how retaliation and unfair firings permitted under today’s at-will employment framework put workers at a fundamental disadvantage when it comes to exercising their rights. The report highlights the costs of this power imbalance for workers and their broader communities and offers the following policy recommendations to California lawmakers:

• Establish a retaliation fund to provide workers with the immediate economic support they need to exercise their rights.
• Bring the state’s varied and complex array of anti-retaliation laws into harmony and ensure that the same protections for workers exist across the California Labor Code.
• Create a rebuttable presumption of retaliation within 90 days and ensure that penalties for retaliation consistently go directly to the worker rather than to the state’s general fund.
• Increase funding for the Labor Commissioner’s Retaliation Complaint Investigation Unit to support its enforcement of more than 45 labor laws.
• Adopt a “just cause” policy to address arbitrary and unfair firings.

The first two sections of the report detail the survey’s findings that few workers who experience workplace violations actually report it, and of those that do, a majority experience employer retaliation as a result. These findings are borne out by complaint data collected from the state’s main workplace enforcement agencies. This retaliation is a major reason why workers do not come forward.

The third section of the report describes some of the immediate catastrophic consequences that flow from employer retaliation, with many workers already just a paycheck or two away from being unable to cover their bills. Section 4 highlights some of the inadequacies in existing state anti-retaliation laws that force workers to bear significant financial risk before holding employers accountable. Section 5 situates workers’ experiences in California’s at-will employment system, where most employers can legally fire workers with no notice for almost any reason or no reason at all.

At-will employment creates a climate of fear that undermines workers ability to speak up about mistreatment, and perpetuates longstanding racial inequities in the workplace. The survey’s data confirms this, finding that unfair and arbitrary firings are common among California’s workforce and that the threat of these firings coerces workers into accepting harmful working conditions. Finally, Section 6 offers the policy recommendations listed above.

Download the full report to read more. 

Endnotes

[i] California Coalition for Worker Power (CCWP) Focus Group with California members of Fight for 15 and a Union, in Spanish, held in September 2021. On file with author.

[ii] Chinese Progressive Association and Asian Americans Advancing Justice – Asian Law Caucus, Press Release, August 21, 2021, https://cpasf.org/updates/workers-at-popular-chinatown-restaurant-win-1-61-million-in-massive-wage-theft-settlement/.