©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 99 reporting a death threat by a co-worker,179 raising reasonable suspicions of company practices violating federal safety regulations,180 investigating and reporting suspected unlawful acts,181 reporting violations of federal immigration law,182 protesting the employer’s refusal to provide reimbursement for mileage,183 protesting an unlawful deduction from a paycheck,184 or notifying the Board of Equalization and the employer’s general counsel of a belief that the employer was not complying with California sales and use tax law, even though the employee was unable to use employer tax returns to prove a tax violation.185 California law protects employees even from preemptive retaliation, where an employer takes adverse action against them in anticipation of their reporting unlawful workplace conduct.186 The Court of Appeal extended this principle in favor of an employee who sued for breach of public policy on a theory that the employer constructively discharged her because she was a potential witness in a claim for sexual harassment: “Employer retaliation against employees who are believed to be prospective complainants or witnesses for complainants undermines this legislative purpose just as effectively as retaliation after the filing of a complaint. To limit FEHA in such a way would be to condone ‘an absurd result’ … that is contrary to legislative intent.”187 Related discussions appear in sections on employee whistleblowing (§ 3.5) and FEHA retaliation (§ 6.11). 5.4.4 Other wrongful discharge claims California courts have also permitted tort claims to challenge employment actions that conflict with public policy, without regard to whether the employee has engaged in protected activity, such as where the employee allegedly was fired for reasons forbidden by an employment discrimination statute, even if the plaintiff has failed to exhaust the administrative remedies that the statute provides and even if the limitations period for filing suit under that statute has expired,188 or to avoid paying commissions, in violation of the Labor Code.189 In yet another extension of employer liability, the Court of Appeal held that a low-wage employee who quit his job could sue for constructive discharge for failing to reimburse his auto expenses. The Court of Appeal reasoned that because the employer’s failure to reimburse expenses effectively reduced the employee’s pay below the minimum wage, the employer arguably created an intolerable work condition for the employee that justified his decision to quit.190 “Pay the union boss or be fired” extortion. The Court of Appeal allowed a wrongful termination claim to proceed against a union that allegedly fired the plaintiff for failing to meet demands to financially support the union leaders’ election campaigns. The Court of Appeal reasoned that a union demand to pay or be fired could qualify as attempted extortion, in that Penal Code section 518(a) defines extortion as obtaining property through “wrongful use of force or fear,” and in that Penal Code section 519 explains that “fear” for purposes of extortion “may be induced by a threat to inflict unlawful injury to the person or property of the individual.” The Court of
RkJQdWJsaXNoZXIy OTkwMTQ4