California Labor and Employment Law » Retaliation-FEHA, CFRA, FMLA, Whistleblower

An Ode to Whistleblowers and the Law: Part II

Eugene Lee — Mon, 28 Sep 2009 01:26:41 +0000

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:

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.
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.
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.
Labor Code 6399.7: prohibits retaliation against employees for filing a complaint or testifying on occupational safety and health matters.
Gov’t. Code 12653: prohibits retaliation against employees who report to the government any fraudulent billings that were submitted for payment to the government.
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.4^th 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.4^th 66, 77.

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

Whistleblower is/was an employee. In most cases, independent contractors are not protected.
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.4^th 1378, 1384–1385.
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.
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.
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.

Print, Email, Share this post:

An Ode to Whistleblowers and the Law: Part I

Eugene Lee — Wed, 29 Jul 2009 21:19:19 +0000

Wikipedia defines a “whistleblower” as a “person who publicly alleges concealed misconduct on the part of an organization or body of people, usually from within that same organization”. It takes a special person to be a whistleblower, to set aside their own self-interest in favor of what’s right, to stand alone against an entire organization, to willingly become a target for retaliation, ostracism and worse. Some famous whistleblowers include:

Lois Jenson: Jenson was the inspiration for the 2005 Charlize Theron film, “North Country”. In 1984, Jenson mailed a complaint to the Minnesota Department of Human Rights complaining about severe sexual harassment she had been experiencing for years while working at a male-dominated Eveleth Taconite Co. mine. Her car tires were slashed a week later. In 1988, Jenson filed the first sexual harassment class action in U.S. history. She won although the case would drag out for 10 years. During the suit, Jenson quit her job and was diagnosed with post-traumatic stress disorder. In 1998, just before another trial was to begin, fifteen women settled with Evelth for $3.5 mil.
Jeffrey Wigand: Wigand was the inspiration for the 1999 Russell Crowe/Al Pacino movie, “The Insider”. In 1996, he appeared on CBS’s “60 Minutes” and accused his employer, Brown & Williamson (a cigarette manufacturer), of intentionally adding addictive and/or carcinogenic ingredients to tobacco blends. He was subject to death threats and harassment and was fired.
Karen Silkwood: Silkwood was the inspiration for the 1983 Meryl Streep film, “Silkwood”. In 1974, Silkwood testified to the Atomic Energy Commission about slipshod safety standards, falsified inspection records, and mishandling of nuclear fuel rods at the Kerr-McGee plutonium plant which employed her. She died under suspicious circumstances while driving to meet a New York Times journalist to go public with more evidence. Her family later hired the renowned trial lawyer Gerry Spence and filed a civil lawsuit against Kerr-McGee. They obtained a $10+ mil. verdict at trial that was reduced to $5,000 on appeal, but that was then restored by the US Supreme Court. They ultimately settled for $1.38 mil.

There are countless more unsung heroes who weren’t fortunate enough to have books written or movies made about them. But the courage and integrity they show in the pursuit of right can be inspirational. I say this having represented a few of them during my time as an attorney. To be sure, whistleblowers aren’t perfect people. The very qualities that make them heroic also in many cases make them susceptible to a smear defense in a civil lawsuit: determination/stubbornness, courage/recklessness, individualism/disloyalty, integrity/inflexibility, etc. That means whistleblowers can present challenges to any lawyer who decides to represent them. That having been said, the story they have to tell a jury can be extremely dramatic and compelling, making for potentially large or landmark verdicts. And perhaps that explains Hollywood’s love affair with whistleblowers.

Next, in Part II, I will discuss the California, and to some extent federal, laws that protect whistleblowers. The good news is that there are strong protections for whistleblowers, although some recent U.S. Supreme Court decisions have shown disturbing hostility to whistleblowers.

Print, Email, Share this post:

Former CIA Operative Sues Agency for Suppressing WMD Intelligence

Eugene Lee — Wed, 02 Jul 2008 16:47:24 +0000

It takes a lot of courage for an employee to stand up to their employer when asked to break the law or look the other way. For those who choose to Do the Right Thing, the decision typically wreaks havoc on their jobs, their careers, their marriages, their finances – on their entire lives. And in the end, is it all worth it? Many whistleblowers, even those few who manage to file and win whistleblower lawsuits, say no. The price they paid is simply too high.

It gets worse. The federal government has actually become acutely hostile to whistleblowers in the last decade. Just take a look at how the federal government has gutted the 1989 Whistleblower Protection Act .

But wait a minute, aren’t more whistleblowers exactly what this country needs to root out all the corruption, the lies, the cover-ups that have come to define the U.S. of late? Why on earth would we want whistleblowers to be silenced?

The Washington Post has this news article, "Ex-Agent Says CIA Ignored Iran Facts" , discussing the plight of a 22-year CIA undercover operative who tried to warn the agency that there were no WMDs in Iran. During the runup to war, that was apparently an inconvenient truth that no one wanted to hear about it. So, according to court allegations, the CIA suppressed the operative’s reports, began falsely investigating the operative, and finally terminated him.

According to the article, CIA spokesman Paul Gimigliano’s response to the operative’s wrongful termination lawsuit was: "It would be wrong to suggest that agency managers direct their officers to falsify the intelligence they collect or to suppress it for political reasons," he said. "That’s not our policy. That’s not what we’re about." Hmmm.

Print, Email, Share this post:

No related posts.

Whistleblower Doctors are a Rare Breed

Eugene Lee — Wed, 30 Jan 2008 05:41:18 +0000

Did you know that, under California’s current system, doctors police and regulate themselves? If a doctor’s competence falls under suspicion, under a system called “peer review”, other doctors are expected to report, review and, if necessary, take action against the errant doctor.This probably seemed like a good idea at the time. After all, who better to judge if a doctor is screwing up than other doctors? And doctors probably prefer to police themselves than to have some pesky government agency watch over them.

In reality, the self-policing peer review system has proven to be a failure. For one thing, members of the “old boy’s club” often skate over the peer review system, essentially untouchable. That’s because they or their buddies tend to sit on the peer review committees. Another reason is that peer review often ends up being used as a politically- or economically- motivated weapon against doctors who are on the “outside” or who have fallen out of favor. For instance, doctors who are brave enough to speak up about problems they see often end up on the receiving end of retaliatory peer review proceedings.

A recent study now proves that, given the above, most doctors choose not to rock the boat. According to an article in the Annals of Internal Medicine, a survey of 1,662 physicians showed that nearly 50% declined to report incompetent behavior or medical errors by their peers. Yet nearly 100% of them said they thought such behavior or errors should be reported to the authorities. You can read more about it at modernhealthcare.com (registration required).

It’s time California did away with the peer review system. In a word, it stinks. One way to do that would be to revoke peer review evidentiary privileges. California law currently protects peer review-related documents from disclosure in lawsuits. This was intended to promote the free-flow of dialogue in peer review meetings. However, when peer review is used for improper reasons, this evidentiary privilege effectively bars the victim from the documents needed to win her lawsuit. Getting rid of this privilege would be one way to dismantle the peer review system.

This may sound like a big leap but it isn’t. Federal courts have long declined to recognize a peer review evidentiary privilege. California just needs to follow the federal government’s lead.

For more information about the broken doctor peer review system, visit peerreview.org.

Print, Email, Share this post:

Senate Passes Legislation to Strengthen Whistleblower Protection Act

Eugene Lee — Sat, 22 Dec 2007 08:25:13 +0000

Government employees who speak out against corruption, fraud or danger to public safety, usually at great cost to their careers and personal lives, have long found the door to justice slammed shut in their faces. U.S. officials have engaged in nothing less than all-out war to silence and punish whistleblowers. The courts, instead of upholding the law, have acted as their accomplices.

In 1989, Congress had enacted the Whistleblower Protection Act (WPA), a law that was intended to protect federal government whistleblowers. After being strengthened in 1994, the WPA went on to be gutted by 13 years of hostile rulings by the highly political Federal Circuit Court of Appeals, which has exclusive appellate jurisdiction over the WPA. The Federal Circuit ruled against federal whistleblowers in a stunning 129 out of 131 decisions. The desperate plight of federal whistleblowers was covered in-depth by Salon.com in November 2007.

On December 18, 2007, the Senate unanimously passed S.274, a bill to restore and strengthen the WPA. A similar bill already passed the House on March 14, 2007. All that remains is for a composite bill to be approved and sent to President Bush for his signature.

President Bush, no friend of the whistleblower, has already vowed to veto any attempts to strengthen whistleblower rights. However, Congress is expected to comfortably override his veto by the necessary 2/3 margin.

Senators Daniel Akaka (D-HI) and Susan Collins (R-ME), along with other members of the Senate Homeland Security and Governmental Affairs Committee, had introduced the “Federal Employee Protection of Disclosures Act”, S.274 back in 2000, but the bill was mired for 8 years in a procedural labyrinth.

Here are the highlights of S.274:

- Neutralizes the effect of the U.S. Supreme Court’s 2006 disastrous decision, Garcetti v Ceballos, 547 U.S. ____ (2006) (which had ruled that government employees have no first amendment free speech protections for job-related whistleblowing statements).

- Restores unqualified requirement that whistleblowers have only a “reasonable belief”.

- Bars President from imposing “intelligence employee” status in an end run to deprive whistleblowers of their merit system rights after they file suit.

- Removes WPA from the exclusive appellate review of the anti-whistleblower Federal Circuit Court and restores all-Circuit judicial review.

- Authorizes whistleblowers to disclose classified information to Members of Congress or their staff.

- Strengthens protections of whistleblowers against retaliatory investigations.

It is good to see Congress step in and right the wrongs perpetrated by a judiciary that increasingly appears to be pursuing an anti-democratic agenda. Unfortunately, it took Congress 13 long years to act. That’s 13 years too late for the many thousands of federal whistleblowers who will go forgotten.

For more information, go to the Government Accountability Project.

Print, Email, Share this post:

And the Winner for Most Popular Discrimination Complaint in the US Is . . .

Eugene Lee — Fri, 16 Nov 2007 23:03:48 +0000

Ever wonder what the most popular discrimination complaint in the US is? According to the Equal Employment Opportunity Commission, the answer is racial discrimination / racial harassment. Following close behind are 2. sex discrimination / sexual harassment, 3. retaliation for making a discrimination complaint and 4. disability discrimination.

I’ve created the below chart from discrimination charge statistics published on the EEOC’s website. Because most people who file an EEOC charge list multiple types of discrimination, the total number of charges is actually less than what’s indicated, hovering around 75,000 to 80,000 per year.

Age discrimination is solidly in sixth place, but I suspect that will be rising significantly as the baby boom generation enters retirement age.

For more information, go to the EEOC’s statistics page.

For a low resolution gif version of the chart, right-click on the thumbnail image and save:

For a higher resolution pdf version of the chart, right-click and save this link: EEOC Charge Statistics by Year.

Print, Email, Share this post:

DLSE: Retaliated Employees Need Not File with State Labor Commissioner

Eugene Lee — Fri, 09 Nov 2007 18:12:12 +0000

There has been some confusion among federal and state courts in California as to whether an employee who has been the victim of whistleblower retaliation by their employer (under Cal. Labor Code s. 1102.5) must first file a complaint with the Labor Commissioner (under Cal. Labor Code s. 98.7) before they can proceed with filing a lawsuit in court. This is important because it potentially creates yet another hurdle for an employee seeking justice.

Federal Judge Oliver Wanger (US District Court for the Eastern District of California) has issued two decisions which said that employees must file a complaint with the Labor Commissioner: Neveu v City of Fresno 392 F.Supp.2d 1159, 1179-1180; and Fenters v Yosemite Chevron 2006 WL 2016536, *21-23. Judge Wanger’s colleague in the Eastern District, Judge Morrison England, disagreed: “To the extent that Neveu interprets Campbell as requiring that remedies before the Labor Commissioner must necessarily be exhausted as a prerequisite to suit under s. 1102.5, this Court disagrees.” Paterson v Cal. Dept. of General Services 2007 U.S. Dist. LEXIS 25957, *22 fn. 5.

Now a division of the California Department of Industrial Relations — the Division of Labor Standards Enforcement — has weighed in on this issue. In a July 2, 2007 opinion letter the DLSE said: “The DLSE’s position is that the wiser course is not to require exhaustion of Labor Code section 98.7 procedures prior to raising a statutory claim in a civil action.”

Here is a link to the DLSE opinion letter in pdf format (right click the link and choose save): DLSE Opinion Lttr re 1102.5 exhaustion

Where do I stand on this? Let’s just say, I think the DLSE is eminently wise and fair. Let’s just see if the courts are willing to listen to reason.

Print, Email, Share this post: