©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 99 claiming in good faith (even if mistakenly) entitlement to overtime premium pay,175 refusing to submit to a random drug test, in violation of constitutional privacy provisions that apply to private as well as public employers,176 refusing to enroll in an inpatient alcohol rehabilitation program,177 resisting sexual harassment that violates constitutional provisions forbidding sex discrimination by private as well as public employers,178 hiring a lawyer to negotiate conditions of employment,179 appearing on a radio show to support a political candidate in a local election and to criticize a Member of Congress for supporting the candidate’s opponent,180 taking leave under the California Family Rights Act,181 or discussing with co-workers the fairness of the employer’s bonus system.182 Reporting a suspected violation of law. California employees can sue for breach of public policy when fired or demoted for reporting an alleged violation of a health and safety statute,183 reporting a death threat by a co-worker,184 raising reasonable suspicions of company practices violating federal safety regulations,185 investigating and reporting suspected unlawful acts,186 reporting violations of federal immigration law,187 protesting the employer’s refusal to provide reimbursement for mileage,188 protesting an unlawful deduction from a paycheck,189 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.190 California law protects employees even from preemptive retaliation, where an employer takes adverse action against them in anticipation of their reporting unlawful workplace conduct.191 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.”192 Related discussions appear in sections on employee whistleblowing (§ 3.5) and FEHA retaliation (§ 6.11).
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