Safety Complaint Retaliation Under Labor Code 6310: Employer Defenses
Since 1977, a safety complaint made to a supervisor has carried the same protection in California as a complaint filed with Cal/OSHA. Labor Code section 6310 bars discharge or discrimination against an employee who complains about safety or health to the agency, to the employer, or to a representative. Section 6311 protects some refusals to do unsafe work. An employer’s defense usually rests on the timeline and on a documented reason for the decision that predates the complaint.
What does section 6310 protect?
Complaints and the activity around them. The statute provides that “No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following.” The list starts with an employee who “Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative.”
It also covers an employee who “Participated in an occupational health and safety committee established pursuant to Section 6401.7,” and one who “Reported a work-related fatality, injury, or illness.” That last category has an exception. Retaliation for filing or announcing a workers’ compensation claim belongs to the statute’s carve-out for Section 132a, “which is under the exclusive jurisdiction of the Workers’ Compensation Appeals Board.” An employee who pleads both theories in one superior court complaint can face a motion on that point.
The protection extends past the employee. Subdivision (c) bars retaliation against an employee who is a family member of a person who engaged in protected safety activity, and subdivision (d) reaches client employers that use labor contractors.
Does the complaint have to be filed with Cal/OSHA?
No. An internal complaint is enough. In Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, the Court of Appeal explained that section 6310 was first read narrowly, “but following that decision the Legislature amended section 6310 expressly to cover complaints made to the division,” and to cover complaints to “his employer, or his representative.”
The court also held that the complaint doesn’t need to identify a violated regulation. It read the statute “to mean that an employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe, whether or not there exists at the time of the complaint an OSHA standard or order which is being violated.”
That standard is broad, and it’s where most employers get caught. A complaint about long shifts, short staffing, or a missing guard can qualify. In Cabesuela v. Browning-Ferris Industries (1998) 68 Cal.App.4th 101, a driver alleged he was fired after complaining about hours he believed were a hazard. The court held the complaint stated a section 6310 claim, noting that the statute “provides remedies for an employee who is discharged for making a bona fide oral or written complaint of unsafe working conditions.”
What does an employee recover under section 6310?
Reinstatement and lost pay, plus whatever a related tort claim adds. Subdivision (b) provides that an employee who suffers adverse action after a “bona fide oral or written complaint” about “unsafe working conditions, or work practices” “shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.”
The bigger exposure usually comes from the tort claim filed alongside it. The Cabesuela court quoted the rule that “An employer who fires an employee in retaliation for protesting unsafe working conditions violates fundamental public policy, and the discharged employee may bring a tort action for wrongful discharge in addition to his or her statutory remedies.” A wrongful termination tort opens the door to emotional distress damages and, in a strong case, punitive damages. That’s why a safety retaliation complaint is worth more to a plaintiff’s lawyer than the statute’s remedies alone suggest.
When can an employee refuse to work?
Only in narrower circumstances than a complaint. Section 6311 provides that “No employee shall be laid off or discharged for refusing to perform work in the performance of which this code, including Section 6400, any occupational safety or health standard, or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or their fellow employees.”
Two statutory conditions have to be met. The work must violate the code or a safety standard or order, and the violation must create a “real and apparent hazard.” The Hentzel court contrasted the two statutes, describing section 6311 as one “which protects the more drastic conduct of refusing to work.” An employee’s sincere worry isn’t enough under 6311 the way it can be under 6310.
The remedy is specific too. An employee who wins under the statute “shall have a right of action for wages for the time the employee is without work as a result of the layoff or discharge.” The section also now reaches domestic work employees, with an exception for certain publicly funded household service.
Where do these claims go?
To the Labor Commissioner, to court, or both. Section 6312 says an employee who believes they were discharged or discriminated against “in violation of Section 6310 or 6311 may file a complaint with the Labor Commissioner pursuant to Section 98.7.” A Labor Commissioner retaliation complaint triggers an investigation, document requests, and interviews, and the employer’s written response becomes part of the record a later lawsuit will use.
Employers shouldn’t treat an agency complaint as a lesser problem. The position statement is often the first sworn-quality account of why the employee was disciplined or let go. If it’s thin or inconsistent with what the company says later, plaintiff’s counsel will use that gap at deposition.
How do safety retaliation claims compare?
| Claim | Statute | Protected conduct | What the employee recovers | Where the defense starts |
|---|---|---|---|---|
| Safety complaint retaliation | Lab. Code § 6310 | Good-faith oral or written complaint to the agency, the employer, or a representative | Reinstatement and lost wages and work benefits | The decision-maker’s knowledge of the complaint and a documented reason that predates it |
| Refusal to perform unsafe work | Lab. Code § 6311 | Refusing work that would violate the code or a safety order and create a real and apparent hazard | Wages for the time without work | Whether a standard was actually violated and whether the hazard was real and apparent |
| Wrongful termination in violation of public policy | Tort claim, tethered to §§ 6310 and 6311 | Same conduct as the statutes | Tort damages, including emotional distress and possible punitive damages | The same causation defenses, plus limits on punitive damages evidence |
| Workers’ compensation retaliation | Lab. Code § 132a | Filing or announcing a workers’ compensation claim | Remedies before the WCAB | Exclusive WCAB jurisdiction over that theory |
What should an employer do after a safety retaliation claim arrives?
The timeline decides most of these cases. Build it from the company’s own records before anyone else does.
- Put a litigation hold on the employee’s personnel file, time records, schedules, discipline history, incident and injury logs, safety committee minutes, and every email or text about the complaint or the employment decision.
- Calendar the response date on the Labor Commissioner notice, demand letter, or summons, and check for an arbitration agreement and an employment practices liability (EPLI) policy with notice requirements.
- Identify who received the safety complaint, who made the employment decision, and what each of them knew and when, and hold any further action against the employee until counsel reviews it.
- Gather what the claim depends on, including the complaint itself, the company’s response to the hazard, any Cal/OSHA inspection file, and the documents showing the reason for the discipline or termination.
- Talk to a lawyer before submitting a position statement, contacting the employee or their lawyer, or making any settlement offer.
Businesses that want employment defense for California manufacturers and contractors can review the firm’s practice page.
Safety retaliation questions from California employers
Does the employee have to be right about the hazard?
Not for a complaint under section 6310. The Hentzel court protected complaints about conditions the employee “reasonably believes to be unsafe,” whether or not a standard was violated. A complaint made in bad faith, or as a tactic to block discipline already underway, is a different matter. Section 6311 refusals are narrower and do depend on an actual violation and a real and apparent hazard.
Can we still discipline an employee who complained about safety?
Yes, for legitimate reasons that would have applied anyway. The complaint doesn’t immunize the employee from attendance, performance, or conduct rules. The risk is timing. Discipline that follows a complaint by days, with no prior warnings in the file, looks like retaliation to a jury. If the issue was documented before the complaint, keep following the same process the company uses for everyone else.
What if the safety complaint was about something we already fixed?
The complaint is still protected if it was made in good faith. Fixing the hazard helps the company’s safety record and Cal/OSHA position, but it doesn’t change whether a later decision was retaliatory. Keep records of the complaint, the fix, and the date of each, since they show the company took the concern seriously.
Are supervisors personally liable?
Section 6310 says “No person shall discharge or in any manner discriminate,” so complaints sometimes name individual managers. Whether a manager can be held personally liable is a contested question that depends on the theory pleaded. Either way, supervisors should be told not to discuss the complaint with the employee or coworkers, and the company should coordinate representation early.
If a safety retaliation claim reaches your company
If your company has received a Labor Commissioner complaint, demand letter, or lawsuit claiming an employee was punished for raising a safety concern, the timeline of the complaint and the decision usually decides how much of the claim is real. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving workplace safety complaints and refusals to work. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Labor Code section 6310, section 6311, and section 6312. The decisions are Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290 and Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, both published decisions of the California Court of Appeal.
This post is general information about California employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.