More workers are filing claims with the state alleging employers are retaliating against them for engaging in legally protected activities, such as seeking overtime pay or reporting wage theft or discrimination. The state’s waitlist for investigations and hearings is growing, and few workers have won their claims.
In June 2020, as California was deep in the throes of the COVID pandemic, Lizzet Aguilar raised the alarm about working conditions at the Los Angeles McDonald’s where she worked.
Joined at times by her coworkers, Aguilar filed three safety complaints with the state and the county alleging that workers were forced to work without masks and that managers failed to notify them when they were exposed to the virus. The workers staged strikes over the summer outside the Boyle Heights restaurant, demanding improvements.
That September Aguilar and three coworkers were fired.
A citation from the state Labor Commissioner’s office against the business followed, along with two years of appeals. This past February the case finally came to a close: A state hearing officer ruled the workers were owed back wages and should be rehired.
The case, whose resolution the Labor Commissioner announced in April, was one of the state’s rare public crackdowns against retaliation — the act of employers firing workers, changing their schedules, cutting their hours or otherwise disciplining them for making legitimate complaints about working conditions.
Retaliation is banned by dozens of California labor laws, but workers’ rights advocates say it’s a common barrier to low-income laborers organizing or demanding more from their jobs.
Now labor activists are pushing for the state to more swiftly resolve retaliation claims, and for the Legislature to pass a measure making it easier for workers to win them. It’s a move business interests oppose, warning it could subject employers to unjustified claims.
Amid an upswing in labor activism, claims of retaliation are rising across the state, CalMatters has found.
California workers last year filed an average of 706 claims of workplace retaliation per month with the state’s Labor Commissioner’s Office, which enforces many labor laws including those banning wage theft.
That’s a 50% increase over the pre-pandemic monthly average in 2019, according to a CalMatters analysis of data obtained through a public records request. In the first three months of this year, workers averaged more claims per month than the monthly average last year.
Workers’ advocates and the state say the increase is driven in part by workers’ increasing awareness of their own labor protections.
“Why this retaliation happens is workers standing up for themselves, standing up for their rights, and owners and companies putting those workers down, deterring the other workers by this increased fear,” said Jules Yun, who organizes restaurant and retail workers for the Koreatown Immigrant Workers Alliance, an advocacy center in Los Angeles.
Those who do complain of retaliation may wait years before the state investigates or hears their claims.
The number of retaliation claims awaiting investigation grew more than five-fold from 2018 through 2021 — to 3,378 cases, according to public reports. By April 2023 the backlog had grown to 4,878 claims, the Labor Commissioner’s Office told CalMatters.
And claims are hard to prove. The Labor Commissioner’s Office in 2021 issued 237 decisions on retaliation claims, most of which had been filed in prior years. Officials dismissed 228 of those claims for a lack of evidence, deciding in the worker’s favor in just nine cases.
A rare win on workplace retaliation
After being fired from her McDonald’s job, Aguilar’s debt piled up and her household income dwindled.
She and her 8-year-old son relied more on her husband as the primary breadwinner, as inflation rose during the pandemic. Aguilar later got a job at another McDonald’s. It was a longer commute, and the cost of gas ate into their budgets.
“I thought, ‘I can’t believe this is happening to me,’” she said. “There are needs in the home. I have to pay for gas. I have to pay bills.”
She was on her way to work at the newer job this year when she learned of the Labor Commissioner hearing officer’s decision in her favor.
The officer ruled that the owner of the Boyle Heights franchise location, R&B Sanchez, Inc., along with its owners Beverly Sanchez and the late Robert Sanchez, and their nephew who was the human resources manager, had illegally retaliated against the four workers for making a legally protected workplace safety complaint.
The state ordered the defendants and the late Sanchez’ estate to pay the four workers back wages and the restaurant’s new owner, DRS Hospitality, LLC, to rehire them. Aguilar, the office ruled, was owed more than $14,700 for the lost hours, plus back pay and $10,000 in penalties.
“I almost screamed throughout the McDonald’s, ‘We won, we won!’” she said. “It was a tremendous joy.”
The money will help Aguilar pay down debts she said she accumulated over months of having lost work.
An attorney representing the Sanchezes and the company did not respond to multiple requests for comment. Reached by phone, DRS Hospitality CEO Dean Sanchez — a relative of the former owners whom the state also listed in the case as an R&B Sanchez company representative — declined to comment, saying he was only “an employee at the time all that happened.”
Rising claims
The labor groups’ advocacy around retaliation targets a central dynamic in the employee-employer relationship: the fear of losing a job.
That power imbalance is a persistent bar to enforcing workplace protections, labor groups say, despite California having some of the strictest labor laws in the nation.
“Retaliation is the thing hanging over so many people in the workplace that prevents us from actually accessing the rights that we have on paper,” said Nayantara Mehta, director of the National Employment Law Project’s worker power program.
Read the full article at CalMatters.org.
