Labor Code §96(k) – Fired for Lawful Off-Duty Conduct

California Labor Code section 96(k) lets the Labor Commissioner take claims for lost wages when an employee is demoted, suspended or fired “for lawful conduct occurring during nonworking hours away from the employer’s premises.” Read alone, that sounds like a ban on punishing workers for anything legal they do on their own time. California courts have not read it that way.

Appellate courts have held that section 96(k) does not create a new, freestanding right. It gives the Labor Commissioner a way to pursue claims for off-duty conduct that is already protected by a recognized constitutional or statutory right. So the real question in an off-duty conduct case is usually: which other law protects what you did?

This page explains what section 96(k) says, how it works with Labor Code 98.6, the limits courts have placed on it, the off-duty activities that do have specific protection, and how to file. For social media posts in particular, see our guide on being fired for a social media post or off-duty conduct.

What Labor Code 96(k) says

Section 96 is a list. It says the Labor Commissioner “shall,” when an employee files a claim, take assignments of several kinds of claims, from unpaid wages to penalties to unreturned tools. Subdivision (k) adds:

“Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”

Three conditions are built into the text: the conduct must be lawful, it must happen during nonworking hours, and it must happen away from the employer’s premises. The remedy named in section 96(k) is lost wages. Section 96 was last amended effective January 1, 2023.

By the numbersOne year

How 96(k) works with Labor Code 98.6

Section 96(k) is a claim-handling provision. The prohibition on retaliation comes from Labor Code 98.6, which bars discharging or retaliating against an employee or applicant for “the conduct described in subdivision (k) of Section 96.” When 98.6 applies, the worker can seek:

• Reinstatement and reimbursement for lost wages and work benefits.
• A civil penalty of up to $10,000 per employee for each violation, awarded to the employee.
• The benefit of a rebuttable presumption of retaliation if the adverse action came within 90 days of the protected conduct.

Section 98.6(g) adds a limit specific to 96(k): the rules protecting family members and holding client employers responsible don’t apply to 96(k) claims unless the off-duty conduct involved exercising other rights protected by section 98.6. See our Labor Code 98.6 explainer for the rest of that statute.

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The limits courts have placed on 96(k)

California Courts of Appeal have held that section 96(k) is essentially procedural. It does not by itself establish a public policy protecting all lawful off-duty conduct; instead, it lets the Labor Commissioner assert, on employees’ behalf, rights that already exist under the California Constitution or other statutes. Our guide on off-duty conduct and social media discusses this case law in more detail.

In practice, that means:

• “Lawful” is not enough on its own. You will usually need to tie the conduct to another protected right, such as privacy, political activity, or a specific statute.
• Employers may still be able to act on off-duty conduct that affects legitimate business interests, such as a genuine conflict of interest or the disclosure of confidential information.
• Conduct on the employer’s premises or during work hours falls outside the text of 96(k).
• Illegal conduct is not covered at all.

Section 98.6(c)(2) also recognizes that some employment contracts can lawfully protect an employer against conduct “actually in direct conflict with the essential enterprise-related interests of the employer.” This is an area where the facts matter, and it is worth having an attorney review your situation before assuming you have, or don’t have, a claim.

Off-duty conduct that has specific protection

Off-duty conduct	Law that protects it	Key limits
Political activity, affiliation, running for office	Labor Code 1101, 1102	Employers can’t adopt rules controlling employees’ political activity or threaten discharge to coerce political action
Cannabis use off the job and away from work	Gov. Code 12954	Doesn’t apply to building and construction trades; doesn’t allow possession, use or impairment on the job
Discussing your pay or working conditions	Labor Code 232, 232.5	Doesn’t cover trade secrets or privileged information
Reporting suspected violations of law	Labor Code 1102.5	Requires reasonable cause to believe there was a violation
Religious practice and other protected traits	Gov. Code 12940	FEHA generally applies to employers with 5 or more employees
Jury duty, court appearances, crime-victim needs	Gov. Code 12945.8	Notice and certification rules apply

For cannabis questions, see our guide on cannabis use and drug testing at work.

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Remedies and who is covered

A worker with a valid 96(k) claim can seek lost wages through the Labor Commissioner. If the conduct is also protected under section 98.6, reinstatement, lost benefits and a civil penalty of up to $10,000 per violation are available. If another law applies, such as FEHA, that law’s remedies apply too.

Section 98.6 does not extend its newer remedies to state or local law enforcement agencies, certain religious organizations, or certain news publishers, so workers in those settings should get specific advice.

💡 Example: Sam, a hypothetical sales associate, attends a lawful political rally on a Saturday. His manager sees photos online and fires him on Monday, saying the company “doesn’t want that kind of person.” Sam earned $1,200 a week and was out of work for 8 weeks. His lost wages are $1,200 × 8 = $9,600. Because political activity is protected by Labor Code 1101 and 1102, his off-duty conduct claim rests on a recognized right, and he may also seek a civil penalty under section 98.6.

Key fact

Deadlines and where to file

• Labor Commissioner retaliation complaint: within one year of the demotion, suspension or discharge, extendable for good cause (Labor Code 98.7).
• Court: you don’t have to use the Labor Commissioner first. A claim for wrongful termination in violation of public policy, if one applies, generally has a two-year deadline (Code of Civil Procedure 335.1).
• CRD: if the off-duty conduct is tied to a protected trait or religious practice, a FEHA complaint is due within three years.

Our article on what counts as wrongful termination in California explains how these claims fit with at-will employment.

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What to do if you were punished for off-duty conduct

1. Write down exactly what you did, when and where, and how your employer learned about it.
2. Save the reason you were given for the discipline or firing, word for word.
3. Note any policy the employer relied on, and whether it was applied to others the same way.
4. Identify any other right involved: political activity, cannabis use, pay discussions, whistleblowing, religion.
5. Don’t sign a severance agreement before it’s reviewed.
6. Talk to an employment lawyer before the one-year Labor Commissioner deadline.

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Frequently asked questions

Does Labor Code 96(k) protect all legal off-duty conduct?

Not in practice. California courts have held that section 96(k) is procedural and protects off-duty conduct only when another recognized constitutional or statutory right protects it.

Can I be fired for my political views in California?

Labor Code 1101 and 1102 prohibit employer rules that control employees’ political activities and threats of discharge to coerce political action. These are among the strongest off-duty protections.

Can I be fired for using cannabis on my own time?

Generally not, under Government Code 12954, unless you work in the building and construction trades or another exception applies. You can still be disciplined for being impaired at work.

Can I be fired for a social media post?

It depends on what the post said and whether another law protects it, such as discussing pay or working conditions, political activity, or whistleblowing. See our social media and off-duty conduct guide.

Does 96(k) cover something I did at work?

No. The text covers only conduct during nonworking hours away from the employer’s premises.

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