The California law prohibiting an employer from retaliating against workers who complain to Cal-OSHA about workplace conditions applies when the employer merely fears or suspects an employee may file such a complaint, according to one California Court of Appeal and the state Labor Commissioner.  The employer, a Malibu beauty salon, fired two employees on the day it was cited by Cal-OSHA for workplace safety violations.  One of the two fired employees had filed the complaint with OSHA, so her case of retaliation was straightforward under the law.  With respect to the second fired employee, however, the salon owner testified that she fired her because the employee made too many mistakes and she "was afraid she will be the next one to report me."  The Labor Code literally prohibits retaliation only against employees who bring such a complaint, and in one case, a Court of Appeal denied relief to an employee who had complained of safety violations to the employer and not any public agency. 

The Labor Commissioner argued for a broad interpretation of the Labor Code to cover retaliation for possible Cal-OSHA filings, since permitting discharges in anticipation of such filings would deter those complaints no less than discharges imposed afterward.  The Court agreed, noting that to allow the employer to fire such employees prior to their complaints would create a "perverse incentive" for employers to preemptively retaliate to avoid legal consequences.

Lujan v. Minagar, 21 Cal. Rptr. 3d 861 (2nd DCA December 9, 2004)