Legal news and tips for employees

An Ode to Whistleblowers and the Law: Part II

Have you blown the whistle on illegal conduct at your workplace? If so, there are state and federal laws that could protect you from retaliation by your employer. For instance, the federal Sarbanes-Oxley Act of 2002 prohibits retaliation against employees of publicly-traded companies who report to the government or their supervisor reasonable suspicions of federal law violations or assist an SEC investigation. 18 U.S.C. § 1513(e).

California has numerous whistleblower protection laws:

  1. Labor Code § 1102.5: prohibits retaliation against employees who blow the whistle to a government agency on, or refuse to participate in, violations of laws and regulations in the workplace.
  2. Health & Safety Code § 1278.5: prohibits retaliation against patients, doctors, nurses and medical staff who blow the whistle to the government or accrediting agencies on medical patient care issues at a health facility.
  3. Labor Code § 98.6: prohibits retaliation against employees who file a complaint for labor code violations with the Labor Commissioner or the Dept. of Fair Employment & Housing.
  4. Labor Code 6399.7: prohibits retaliation against employees for filing a complaint or testifying on occupational safety and health matters.
  5. Gov’t. Code 12653: prohibits retaliation against employees who report to the government any fraudulent billings that were submitted for payment to the government.
  6. Gov’t Code § 12940(h): prohibits retaliation against employees who oppose discriminatory or harassing treatment based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.

Wrongful Termination in Violation of Public Policy: In most cases, California laws do not protect employees who report illegal activity merely to their employer. (See Green v. Ralee Eng. Co., 19 Cal.4th 66, 87 – employees fired for reporting suspicions of illegal activity to their employer do not have a claim under Labor Code § 1102.5). Rather, the employee must actually pick up the phone and make a formal report to a government agency in order to be protected. However, California courts also recognize a common law cause of action for “wrongful termination in violation of public policy” which does protect such employees. While California is an at-will employment state, meaning employers can fire employees for almost any reason or no reason at all, California courts have long protected employees who are fired for complaining to their employers about reasonable suspicions of violations of laws and regulations. In a landmark case called Green v. Ralee Eng. Co., the California Supreme Court ruled that California law expresses a “broad public policy interest in encouraging workplace whistleblowers to report unlawful acts without fearing retaliation”. (1998) 19 Cal.4th 66, 77.

Typically, the whistleblower needs to prove the following in order to prevail on a whistleblower retaliation claim:

  1. Whistleblower is/was an employee. In most cases, independent contractors are not protected.
  2. Whistleblower blew the whistle on illegal activity to a government agency. The employee cannot merely report improper conduct; the conduct must be illegal. In Patten v. Grant Joint Union High School Dist., the court ruled that a school principal’s report to a school district that a male PE teacher was peeping in the girls’ locker room was not protected from retaliation. (2005) 134 Cal.App.4th 1378, 1384–1385.
  3. Whistleblower had reasonable cause to believe the law was being broken. A whistleblower would still be protected even if her suspicions of illegal activity turned out to be wrong. However, the key is that her suspicions had to have been objectively reasonable and subjectively sincere.
  4. Whistleblower was subjected to an adverse employment action, such as termination or demotion or any other material change in the terms and conditions of their employment. A retaliatory writeup, administrative leave with pay, or sarcastic remarks probably would not qualify as adverse employment actions in most cases.
  5. Retaliation for whistleblowing was a “motivating factor” in the employer’s decision to engage in the adverse employment action. Remarks by a supervisor that he intended to get even with the employee for blowing the whistle would be good evidence of this. If the retaliation followed a short time after the whistleblower blew the whistle, that would also be good evidence of retaliation. In some cases, such “proximity in time” even turns the tables on the employer so that the burden is now on them to prove that they were acting lawfully when terminating or demoting the employee.

A whistleblower who wins her case in court can recover a wide range of damages and remedies: lost wages and benefits, emotional distress, job reinstatement, punitive damages, attorney fees and costs, etc. In some cases, a whistleblower can even get double backpay (Gov’t. Code § 12653(c)). More importantly, whistleblower retaliation claims have been known to anger juries, causing them to issue unusually large awards to successful plaintiffs.

If you’re a whistleblower who has been retaliated against, you should contact a lawyer immediately as your claims are likely subject to strict legal filing deadlines.

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  • Sece

    We have a situation with an employee that works from home. the owner made a mistake (not familiar with the law) and terminated her employment because she claimed that she was under-paid and had filed a claim with the labor board (this is a sales position and her sales were not up to par) . The HR person immediately (within 10 minutes of the termination) called the attorney and the employee to say a mistake was made and that she could return to work the next day. Because this woman is a scammer (she stole a company phone list of employees that were employed BEFORE she ever worked there) and started calling all of these employees to try to get them involved in some sort of class action law suit. We are a very small company and we have gone above and beyond for this individual, she was a family friend so we kept her on way longer than we should have. Do we have any hope of over coming the retaliation claim, since we tried to rectify it immediatley…. the wage claim turns out to be un-founded.

  • Kat

    Hello:
    I am not sure I am posting this on the right blog….
    Can someone shed some lights for me? Is this a wrongful termination?
    I worked through lunch time. When it is time to write up my timecard, I included those hours as my work hours. I then submitted my timecard to my manager, she did not like the high OT that I have. She ask me explained why I have so many OT. I answered her question by saying I worked lunch hours. She said, we do not pay lunch time if you work through lunch. She then asked me to redo the timecard and reduced the lunch time that I’ve worked (which was 10hrs) and asked me to sign it. I told her I will sign it but she got to compensate me somehow because she owes me 10 hrs. Days after, she does not say ‘hi’ to me. 3 days later, I got a call to the Operation Manager and she discharged me from work. Her reason was the market has slow down. Though, I have noticed, they have hired a woman in 5 days before this incident has happened. That women was supposed to be trained at our branch and get shipped out to another branch to work. Before I left, I was informed, she is staying at our branch.
    If the market is slow and they are getting rid of employee to cut back, shouldn’t she be the first one to go?
    I think because I spoke up about NOT getting paid on my lunch time and they find a reason to let me go.
    Do I have a case? If so, I have no idea who to go to…help.

  • http://www.robertreeveslaw.com Los Angeles Lawyer

    Interesting, these are good laws. Unfortunately, a lot of companies are probably perturbed, but it protects people that are trying to be honest and offer legitimate respect to law.

  • Dan

    Is there any chance of a whistleblower article covering government code 53296 – 53299, Local Government Disclosure of Information Act? It seems to get little acknowledgment.

    Thank you

  • http://www.LOEL.com Eugene Lee

    Thanks! Glad to see another whistleblower fan on the interwebs.

    Gene

  • http://research.lawyers.com/blogs/authors/582-Jonathan-K-Tycko whistleblower

    These are great posts, I am so glad you are taking the time to delve into this subject.