Whistleblower Protections
Common violations
whistle-blower
RETALIATION
HEALTH AND SAFETY
cONSTRUCTIVE tERMINATION
A Whistle blower is someone who learns of unethical or illegal activity occurring within their company and either refuses to participate in it or reports it. While California is an “At Will” state - meaning an employer can usually terminate employment for any or no reason at all - retaliation against a Whistleblower is strictly prohibited.
There are two primary laws here in California that are specifically focused on protecting Whistleblowers from retaliation. Additionally, most laws governing discrimination, sexual harassment, and complaints about wage violations, also include some language regarding anti-retaliation prohibitions.
In California, Labor Code section 1102.5 prohibits employers from implementing or enforcing policies and practices designed to prevent an employee from disclosing information (in other words, making a complaint, reporting, or telling someone), if the employee has reasonable cause to believe the information disclosed is a violation of a law, statute, rule or regulation. It also specifically prohibits retaliation against an employee who discloses the information or refuses to participate in the practice.
The disclosure can be to someone within the company, such as a supervisor as well as someone outside the company, such as the Equal Employment Opportunity Commission (EEOC), the Department of Industrial Relations (DIR), the Occupational Health and Safety Authority (OSHA), or other regulating body.Under the law, the practice, policy or action taken by the company need not actually be against the law. The law only requires that employee has reasonable cause, to believe it was a violation of a law, statute, rule, or regulation. An example would be if an employee submitted a complaint to EEOC alleging that she was being bullied by her boss. Because the employee complained about what she believed to be illegal bullying, her employer demoted her. The EEOC later determines that the bullying she experienced was not because of her membership in a protected class or other reason prohibited by law. Technically speaking, the employer’s bullying was not illegal, however, the complaining employee is still protected by the Labor Code under 1102.5 from retaliation, if she reasonably believed that bullying was illegal. As such, the company demoting the complaining employee because she complained to the EEOC, violated Labor Code 1102.5. As a result, the employee can seek damages for retaliation even though her initial complaint encompassed no wrong doing on the company’s part.
Labor Code 6310 protects against complaints relating to health and safety in the workplace and protects an employee who makes such a complaint under the Occupational Health and Safety Act (OSHA) from retaliation.
In addition to these two laws focused on protecting Whistleblowers from retaliation, laws governing discrimination, sexual harassment, and complaints about wage violations, also include some language regarding anti-retaliation prohibitions meant to protect employees who complain, refuse to participate in or report what they believe to be illegal activity. For example, a supervisor at a company is told that she needs to provide better coverage for the company’s retail store throughout the day and the best way to do this is to have employees take their lunch break at the store and ask that they assist customers during their lunch break. The supervisor reasonably believes it is illegal to not provide employees who work more than six hours with an uninterrupted lunch break. The supervisor refuses to make employees work during their lunch and instead staffs appropriately to ensure employees get and uninterrupted lunch break. In response, the company tells the supervisor she is not a team player and decides to demotes her. The supervisor would have anti-retaliation protection and likely has a claim for retaliation because of the demotion.
Retaliation occurs when an employee engaged in a protected activity (such as disclosing information about an illegal practice or policy) and as a result is subjected to what is called an Adverse Employment Action” . An Adverse Employment Action can include actions such as discharge/termination, demotion, suspension, reduction or change in pay or hours, refusal to hire or promote, or other forms of threats and harassment. Under both state and federal law participation in a protected activity includes any of the following:
Complaining about what the employee reasonably believes to be illegal activity (to someone inside or outside of the company)
Complaining about health and safety issues (to someone inside or outside of the company)
Refusing to participate in what they reasonably believe to be illegal activity
Opposing, complaining or refusing to participate in illegal discrimination, sexual harassment, or other violations of the law
Organizing to change working conditions (including negative posts on social media in some cases)
Participating in an investigation
Reporting unlawful or unethical behavior or practices
If the employee’s participation in a protected activity resulted in an “Adverse Employment Action” such as termination, loss of pay, demotion, change in hours, change in pay and/or other action which makes it more difficult to do one’s job or robs one of the privileges and benefits of their employment, that employee may have a claim for retaliation. Often retaliation takes the form of Wrongful Termination where an employer terminates the employee’s employment because they engaged in the protected activity. Whistleblower laws can be complicated. A Labor & Employment Attorney can advise you if you may have a claim for retaliation or wrongful termination.
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Laws protecting California Employees From
Whistleblower Retalation
There are several laws which protect California employees from wrongful termination and retaliation. Here are a few:
Occupational Health & Safety Act (OSHA)
California Labor Code
Title VII of the Civil Rights Act of 1964
Family Medical Leave Act (FMLA)
Americans with Disabilities Act (ADA)
Age Discrimination in Employment Act of 1967 (ADEA)
Federal Labor Standards Act (FLSA)
Healthy Workplace Health Families Act
California Family Rights Act (CFRA)
The United States Constitution
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How Can The Employment Justice Project Help?
There are several ways that the Employment Justice Project can help. Every case is different and while EJP can make no guarantee of results in your specific situation, here are a few examples of the assistance EJP may be able to provide:
Listen
Counsel and Advise
Request and review employee file and payroll records for evidence of violations
Interview witnesses
Educate you on your rights and possible claims
Educate your employer on your rights and their responsibilities under the law
Advocate for reinstatement
Advocate for resolution of your claims
Negotiate recovery of lost wages and penalties
Negotiate terms of settlement or severance agreement
Negotiate a neutral reference
Litigate, if needed and appropriate
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