Can i sue my employer for retaliating and harassing me for reporting a health and safety hazard to cal - OSHA ; and my union for lack of representation and breach of contract .
Employment / Labor Attorney
If you were retaliated against for reporting safety concerns to a government agency you would likely have a whistleblower claim as well as a retaliation and wrongful termination claim. You can sue them in state superior court.
Labor Code section 1102.5 prohibits retaliation against an employee for disclosing to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. For information and to file a FREE administrative complaint online go to:
Similarly, you may have a claim against a union for breach of the duty of fair representation. However, there are insufficient facts to determine the merits of your potential claim.
The National Labor Relations Board (NLRB) (http://www.nlrb.gov/) investigates complaints of unfair labor practices by employers and unions.
Finally, you may speak with a lawyer to obtain specific information regarding how to evaluate and/or pursue your claims. You may be entitled to recover your reasonable legal fees if you prevail.
2 lawyers agree
Employment / Labor Attorney
With respect to health and safety report: Whistleblowers are employees who refuse to violate the law, or who report wrongdoing that harms the public or has the potential to harm the public. The wrongdoer can be a private employer, a private entity, a federal, state or local government, or another employee. Usually, but not always, the wrongdoing benefits the person or entity that engages in the wrongdoing. Harm to the public may be caused by inflated prices, dangerous products, environmental harm, and more.
Whistleblowers are protected by law. The purpose of whistleblower protection laws is to allow employees to report, stop or testify about this kind of wrongdoing, as a benefit to the public. Note that complaints about wrongdoing that only harm the employer itself are not protected by whistleblowing laws. Many whistleblower laws have a very short time period in which to file a claim. Please see my Avvo guide to whistleblowers for more information about whistleblowing: http://www.avvo.com/legal-guides/ugc/whistleblowers-and-their-rights?published=true.
Regarding the union: Most unions try to do the right thing and obtain justice. Sometimes “justice” does not help an individual employee. One reason is that unions have their primary obligation to the entire group of job classifications the union represents; that group is called the “bargaining unit.” Unions have the right to decide whether to pursue a case or not. However, a union cannot make its decisions in a way that is arbitrary, discriminatory, or in bad faith. The standard is much harder to meet than meeting a negligence standard.
Most local unions have limited money and staff resources so they must pick and choose which cases to pursue. Unions have to balance the need for more money (to hire more union reps or to take more cases to arbitration, for example) with the bargaining unit’s resistance to higher dues. This is similar to elected officials who must always balance constituents’ wishes with the need to raise taxes.
Some union reps are highly effective; others are incompetent, just as some attorneys and politicians are incompetent. Many local labor unions are run by volunteers. Many union representatives are full-time employees of the employer so do much of their union work on their own time, especially evenings and weekends. Only some unions have enough money to reimburse their reps for missed work hours, such as when handling a grievance. Only some unions have the strength to negotiate “lost time” with the employer, where the employer has to pay the rep’s wages when the rep is handling grievances; this time is usually limited to a low number of hours.
Nearly all elected and appointed union officers start out as rank-and-file workers. They may be elected due to work competence, seniority, intelligence, charm, good looks, having a big mouth, blustering, oratory skills, etc. – just like politicians. There is a range of skills and a range of experience among them. Most unions provide some training for officers and stewards, but others don’t have the resources to do so. The quantity and quality of training can vary widely.
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twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
Administrative Law Lawyer
You can sue both, of course, because anyone can sue anyone for anything. But there are profound issues of fact about whether you should sue either and whether you have any reasonable expectations of "success" -- by any measure of that concept.
If you haven't been terminated, suspended or demoted, the "harassment" and "retaliation" needs to be pretty striking and shocking to justify a lawsuit. You will find that out when you shop for a contingency attorney.
And the potential success of a suit against the union on this factual basis is immeasurably low. Under the law, the union has wide discretion as to which matters it will carry any grievance or appeals processes on.
And, of course, you must understand that if you sue, even before you can assess whether the results of that suit put any meaningful amount of $ in your pocket, you will be out of that job.
My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.