California Labor Code 98.6 Overview and Example Scenarios
Legally reviewed by: Jessica Anvar Stotz, JD, MBA
California Labor Code 98.6 is a California statute that describes certain conduct employees cannot be fired for by their employers. This conduct typically involves the employee bringing some kind of a claim, like a claim for unpaid or loss of wages for various reasons.
California Labor Code 98.6 Explained in 90 Seconds
California Labor Code 98.6 states that an employer cannot fire or otherwise discriminate against an employee or prospective employee (an applicant) because the employee or applicant is bringing a particular claim against that employer. These claims include:
- Wage claims regarding incidental expenses;
- Liens of employees;
- Claims based on “stop orders” for wages;
- Claims for damages for misrepresentations of working conditions;
- Claims for unreturned bond money;
- Claims for penalties for nonpayment of wages;
- Claims to return a worker’s tools illegally possessed by someone else;
- Claims for vacation or severance pay, or other additional compensation to a wage agreement;
- Claims for lost wages as a result of discharge from employment for the garnishing of wages; or
- Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct taking place during nonworking hours away from the employer’s premises.
When an employee or applicant brings one of these claims against their employer, California Labor Code 98.6 guards them against discrimination because they are bringing a protected claim.
Code 98.6 also imposes a penalty on employers who willfully refuse to hire, promote, or otherwise restore a former employee who is eligible for rehire or promotion based on a grievance procedure. Finally, it protects against employees being discriminated against on the basis of their family members engaging in the same conduct as listed above.
Labor Code §98.6 According to the California Government
(a) A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted any proceeding under or relating to his or her rights that are under the jurisdiction of the Labor Commissioner, made a written or oral complaint that he or she is owed unpaid wages, or because the employee has initiated any action or notice pursuant to Section 2699, or has testified or is about to testify in a proceeding pursuant to that section, or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.
(b)(1) Any employee who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to an adverse action, or in any other manner discriminated against in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the employee has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.
(2) An employer who willfully refuses to hire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.
(3) In addition to other remedies available, an employer who violates this section is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section, to be awarded to the employee or employees who suffered the violation.
(c)(1) Any applicant for employment who is refused employment, who is not selected for a training program leading to employment, or who in any other manner is discriminated against in the terms and conditions of any offer of employment because the applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, or because the applicant has made a bona fide complaint or claim to the division pursuant to this part, or because the employee has initiated any action or notice pursuant to Section 2699 shall be entitled to employment and reimbursement for lost wages and work benefits caused by the acts of the prospective employer.
(2) This subdivision shall not be construed to invalidate any collective bargaining agreement that requires an applicant for a position that is subject to the collective bargaining agreement to sign a contract that protects either or both of the following as specified in subparagraphs (A) and (B), nor shall this subdivision be construed to invalidate any employer requirement of an applicant for a position that is not subject to a collective bargaining agreement to sign an employment contract that protects either or both of the following:
(A) An employer against any conduct that is actually in direct conflict with the essential enterprise-related interests of the employer and where breach of that contract would actually constitute a material and substantial disruption of the employer’s operation.
(B) A firefighter against any disease that is presumed to arise in the course and scope of employment, by limiting his or her consumption of tobacco products on and off the job.
(d) The provisions of this section creating new actions or remedies that are effective on January 1, 2002, to employees or applicants for employment do not apply to any state or local law enforcement agency, any religious association or corporation specified in subdivision (d) of Section 12926 of the Government Code, except as provided in Section 12926.2 of the Government Code, or any person described in Section 1070 of the Evidence Code.
(e) An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any conduct delineated in this chapter.
(f) For purposes of this section, “employer” or “a person acting on behalf of the employer” includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400.
(g) Subdivisions (e) and (f) shall not apply to claims arising under subdivision (k) of Section 96 unless the lawful conduct occurring during nonwork hours away from the employer’s premises involves the exercise of employee rights otherwise covered under subdivision (a).
What Wage and Hour Violations are Covered by Labor Code 98.6?
Many common wage and hour violations are covered by §98.6, such as:
- Employers not compensating employees for meal breaks
- Employers neglecting to provide required meal breaks
- Failing to reimburse employees for work-related expenses
- General unpaid wage claims
- Making illegal deductions from employee paychecks
- Failing to provide employees with vacation or severance pay
- Overtime violations, such as failing to pay proper overtime wages
Different Ways Employees Can Report Violations
Employees who believe they have a claim against their employer can report violations by submitting a written complaint to their closest Labor Commissioner’s Office either in person or by mail. These claim forms can be found online, typically on state government websites of labor departments. Claims can also be submitted online on the same websites, such as the California State Government Department of Industrial Relations website.
Protection From Retaliation for Reporting Violations
Retaliation takes place when an employer fires or otherwise discriminates against an employee because that employee is bringing a labor violation claim. Retaliation can take many different forms, such as outright firing the employee, demoting them, reducing their wages or benefits, or transferring employees to a less favorable position.
Employers are not permitted to retaliate against their employees for engaging in the conduct protected by CA Labor Code 98.6. If you have been retaliated against for bringing a labor violation claim, you are protected by §98.6 and may be compensated any suffering sustained.
Potential Remedies Available to Employees Who Experience Retaliation
Employees protected by Labor Code 98.6 can receive a variety of remedies after experiencing retaliation. This remedy will typically be related to the type of retaliation experienced.
For example, an employee who was wrongfully discharged may be rehired to remedy the improper conduct taken by the employer. Employees are also entitled to be reimbursed for lost wages and benefits due to the discharge. To ensure employers provide these available remedies, §98.6 makes it a misdemeanor for an employer to not reinstate an employee who has been found eligible for rehire as a remedy.
What Constitutes Retaliation Under Section 98.6?
California Labor Code 98.6 protects against “discrimination, retaliate[ion], and any adverse action against any employee or applicant.” It also mentions discharge, demotion, suspension, retaliation against, subjecting to an adverse action, or any other form of discrimination as protected against under the Code.
A refusal to hire or rehire, to select for a training program leading to employment, or any other discrimination regarding an offer of employment is also protected against. When an employer engages in such conduct in response to an employee bringing a claim for a labor violation, it is considered retaliation by §98.6.
Complying With Wage and Hour Laws
Employers must comply with wage and hour laws or risk opening themselves up to labor violation claims from affected employees. When an employer fails to comply with wage and hour laws, an employee is justified in bringing a labor violation claim. If an employer then retaliates against that employee, Labor Code 98.6 protects the employee and provides them with a remedy to regain employment and be reimbursed for lost wages and benefits. Complying with wage and hour laws minimizes the potential of such claims being levied against an employer and creates a healthy work environment for employees.
Best Practices to Avoid Retaliation Claims
Employers can take action to avoid retaliation claims beyond simply abiding by the relevant labor laws. For example, proper documentation of employee hours, benefits, and wages helps create transparency between the employer and their employees and creates a healthier work environment overall.
Providing employees with the proper information to recognize retaliation also develops transparency and trust within the organization. Finally, if employees raise a retaliation claim, treating them fairly throughout the process can prevent further claims from being created and raised by the same employee. Such treatment will likely also be recognized throughout the organization and therefore create more trust.
Example Scenarios of Retaliation
Example 1: Unpaid Overtime
- Scenario: A retail employee at a clothing store regularly works more than 40 hours per week but is only paid for their straight time (40 hours) and receives no overtime pay for the additional hours.
- Violation: Overtime violation under California Labor Code.
- How Section 98.6 Protects: The employee can report the unpaid overtime to the Division of Labor Standards Enforcement (DLSE) without fear of retaliation from their employer. Section 98.6 prohibits the employer from firing, demoting, reducing hours, or taking any other adverse action against the employee for reporting the violation.
Example 2: Missed Meal Breaks
- Scenario: A customer service representative at a call center is not allowed to take their full 30-minute meal break as they are pressured to answer calls constantly.
- Violation: Meal break violation under California Labor Code.
- How Section 98.6 Protects: The employee can file a complaint with the DLSE about the missed meal breaks. Section 98.6 ensures the employer cannot retaliate for reporting the issue.
Example 3: Documented Complaint, Negative Performance Review
- Scenario: A delivery driver notices discrepancies in their paychecks and files a written complaint with their manager. Shortly after, the employee receives a poor performance review despite a history of positive evaluations.
- Possible Retaliation: While not all negative performance reviews are retaliation, the timing in this scenario suggests potential retaliation for the wage complaint.
- How Section 98.6 Protects: The employee can consult with an attorney to explore if the negative performance review is retaliation for reporting the wage issue. Section 98.6 allows employees to pursue legal action against employers who retaliate for asserting their wage and hour rights.
These are just a few examples, and it’s important to remember that Section 98.6 applies to various wage and hour violations. If an employee feels their rights have been violated, they should consult with the California Department of Industrial Relations or an employment attorney to understand their options.
Resources for Employers and Employees
- California Code, Labor Code – LAB §98.6
- California Department of Industrial Regulation: Report a Labor Law Violation
- Occupational Safety and Health Administration: Recommended Practices for Anti-Retaliation Programs
- S. Department of Labor Wage and Hour Division: How to File a Complaint
- S. Department of Labor Wage and Hour Division: Retaliation
- S. Equal Employment Opportunity Commission: Preventing Retaliation
Connect with an Attorney
If you are looking to speak with an attorney regarding a potential labor law violation claim, LawLinq is here to assist you. At LawLinq, we work with a team of exception of attorneys who are experienced in specific areas of the law such as Labor Law.
Based on the facts of the specific situation, we will link you with an attorney specific to the individual needs at issue. Navigating the legal landscape can be disorienting for victims, oftentimes resulting in inadequate relief. To find out if you have a case against your employer today, contact LawLinq.
