California Labor Commissioner Puts Employers On Alert Regarding Coronavirus-Related Retaliation With McDonalds Franchisee Citation
If they have not been vigilant already, employers should now be on heightened alert when dealing with employees expressing coronavirus health concerns or other workplace safety issues. The recent decision by the California Labor Commissioner to fine a McDonalds franchisee $126,000 for terminating four employees who complained about COVID-19 safety issues in the workplace has now put the spotlight on employer retaliation.
Until now, employee retaliation complaints have taken at least 1 year for the Labor Commissioner to process and fines against employers were infrequent. But the tide has turned in favor of workers. In the case of the McDonalds franchisee, the Labor Commissioner sped up its investigation and citation process. The result was that the state declared the franchisee, owners and human resources officer jointly and severally liable for fines and penalties that included lost wages ($45,193), interest ($720), and Labor Code section 98.6 and 1102.5 retaliation penalties ($40,000 for each Labor Code violation).
The restaurant and owners were also ordered to reinstate the four workers, to remove all negative references in their personnel files and to post information about the citations and violations in the workplace. The owners are now left with the unhappy choice of either complying with the penalties and orders or appealing the Labor Commissioner’s judgment. Either way, a scarlet letter now hangs over their heads.
At the state level, the Labor Commissioner’s office has launched an interdisciplinary outreach campaign entitled “Reaching Every Californian.” According to that office, “the campaign amplifies basic protections and builds pathways to impacted populations so that workers and employers understand legal protections, obligations and how to defend them.”
Such Labor Commissioner enforcement and local employee protections have bolstered the list of already stringent worker protection laws enacted in the past year. Legislation such as AB 685 (tougher COVID-19 employer reporting standards), AB 1867 (supplemental paid sick leave for COVID-19 positive workers) and SB 1159 (presumption that COVID-19 diagnosed worker has occupational injury) have caused businesses to take notice. Perhaps this latest citation by the state is a warning to employers of more frequent repercussions to come.
What then is the take-away message here? Employers should consult counsel before terminating employees with COVID-19 or other workplace safety concerns, even if they may seem baseless. Keep in mind that employees alleging retaliation need only show a “good faith belief” that working conditions are unsafe, so businesses should exercise restraint before taking swift action that might prove costly in the end.
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