There are many violations by companies and organizations which occur and go unreported simply because many employees are afraid that they may be terminated from their position or their employer will retaliate against them. Illegal activities committed by an organization or company can be dangerous to public health and safety and may affect many people. While many employees are hesitant to report any illegal activity, some are not aware of the existing anti-retaliation laws which protect worker’s jobs if they report this illegal and dangerous activity, a move that can make our world safer, greener, and more just.
If an employer wants to punish an employee for disclosing unlawful activities, they have a few ways to do it. So, instead of discharging a whistleblower, an employer can look for other subtle ways of making a worker suffer. The margin error for discipline may tighten, the bonuses and promotions may dissolve, and other incidents that can force you to quit. Courts know these forms of punishment and can infer when the employer used his/her power to make working conditions intolerable for the employee.
There exist laws which protect which protect the public at large: taxpayer-funded programs, industry-government regulations, and environmental laws. Employers can therefore not retaliate against whistleblowers if there’s enough evidence to show abuse of power, gross mismanagement, gross waste/fraud, or other illegal activities that may pose a threat to public and health safety.
Whistleblower and Retaliation Laws
Whistleblowing happens when an employee notifies the law enforcement or the government when their employer is breaking the law. Being a whistleblower takes professional risk and personal sacrifice. That’s why whistleblower laws protect employees against harassment, discrimination, and retaliation after reporting that their employer breached the public trust or violated the law. The whistleblower protection laws give employees the right to ascertain a claim or file a private lawsuit in the event that he or she suffers retaliation. For instance, an employee could file a whistleblower lawsuit against her employer if he/she is fired after notifying the law enforcement that his/her company illegally dumps hazardous waste into the river.
California’s whistleblower law was reinforced in 2014 to protect both public and private employees. The Whistleblower Protection Act was expanded to include three additional laws. The existing law had already prohibited employee retaliation but one of the additional laws expands this to also include reporting of a suspected violation externally to any public body conducting an investigation or hearing or internally such as to a supervisor within the company. In addition, the law extends liability for the illegal acts beyond the employer to include any individual acting on behalf of the employer. Workers who report violations even if that is not part of their job duties are also protected by California whistleblower protection laws.
There are typically four general categories of activities that are protected under whistleblower laws, including:
- Disclosing suspected violations of federal or state law to a law enforcement agency or government agency
- Reporting a statutory violation for the public benefit
- Refusing to participate in any activity that is considered unlawful
- Disclosing suspected violation to an individual with the authority to discover, investigate, and correct the violation or to an individual with authority over the employee
- Exercising a constitutional right or privilege
In addition, an employer may not adopt a policy that prevents workers from reporting suspected illegal activities to an individual with authority over the employee, a law enforcement agency, a government agency, or an individual with the power to investigate and correct the violation. The protection offered by these laws also extends to future employment and as such, workers may not be retaliated against by future employees for disclosing illegal activities in an earlier employment situation.
California Laws that Protect Employees from Whistleblower Retaliation
California whistleblower laws are found in different statutes that cover somehow different situations. But the most important ones that protect employees from retaliation include:
General Whistleblower Protection – Labor Code 1102.5 LC
Labor Code 1102.5 LC is California’s most general law that prevents employers from retaliating against an employee for disclosing information involving noncompliance or violation of a law or regulation to a law enforcement or government agency, another employee with authority to investigate or correct the violation or a person with authority over the employee, OR testifying before or providing information to any public body conducting an inquiry or investigation about what the employee reasonably believes is a noncompliance with or a violation of a law or regulation.
John works as a driver for a waste management company. The company has financial struggles and John is asked by his supervisor to hide a small load of hazardous waste in with a load household waste. John is aware of the company’s struggles and that his supervisor is looking for a way to avoid paying the higher fees required to safely dispose of toxic waste. He also knows that toxic waste should be disposed of in a special facility as required by state laws. John reports this to the Manager and is told not to worry. Soon after, John is informed that the company is going to outsource to independent drivers and that his services will no longer be needed. He is terminated but then other drivers that he used to work with continued to be employed. John believes he was fired because he called attention to the firm’s unlawful activities. In this case, John’s employer engaged in whistleblower retaliation by firing him and he could have a reason to file a lawsuit.
It’s worth noting that your employer can still violate LC 1102.5 even if you never actually reported a violation of the law. An employer can be liable by retaliating against a worker because the employer believed the worker was about to report a violation or the employer wrongly believed that the employee had reported a violation. This law also protects employees from retaliation for whistleblower activities engaged in by members of the employee’s family, or for whistleblower activities the employee engaged in a previous employment situation.
Whistleblower Protection for Labor Violation Reports – Labor Code 98.6 LC
Labor Code 98.6 LC offers whistleblower protection for wage/hour violation reports made to the California Labor Commissioner. Complaints made by employees to the Labor Commissioner often involve wage and hour law violations, where an employer fails to give an employee overtime pay, pays less than minimum wage or fails to provide rest and meal breaks required by law. LC 98.6 also prohibits retaliation against family members of individuals who complained about labor violations or job applicants who filed complaints about their previous employers.
Flora is a receptionist for medical practice. She is repeatedly asked to misinterpret her hours so she doesn’t have to be paid overtime. Flora gets fed up in the long run and files a complaint with the California Labor Commissioner. His complaint is investigated and the medical practice owner is forced to pay Flora for the overtime owed. Flora quits her job and applies to another dental practice in the same area in response to a job posting. However, her former employer is a friend of the dental practice owner and tells him about the ordeal with the Labor Commissioner. As a result, the dental practice owner refuses to even interview Flora. Under LC 98.6, the behavior of the dental practice owner is a form of whistleblower retaliation even if Flora is not an employee there.
Whistleblower Protection for Disclosing Workplace Health and Safety Violations – Labor Code 6310 LC
Similar to LC 98.6, Labor Code 6310 LC offers whistleblower protection to employees who report to the California Division of Occupational Safety and Health (Cal/OSHA) for employer violation of occupational and safety rules. This statute also forbids retaliation or discrimination against family members of employees who disclose violations of worker and health safety.
Whistleblower Protection for Public Employees – Government Code 8547 GC
Employees working for the California state government are protected by a special whistleblower law that only covers state public employees. The Government Code 8567 GC et seq. describes California’s public employee whistleblower retaliation law, commonly referred to as the California Whistleblower Protection Act. There are different aspects that distinguish this statute from other whistleblower laws that private-sector employees. Whistleblower protection laws that cover employees in the private sector protect workers who report suspected law violations. Conversely, Government Code 8547 GC et seq. protects state government employees who report the following:
- Governmental activity that involves incompetency, misconduct, or inefficiency, OR is economically wasteful
- Conditions that may substantially affect the safety or health of the public or employees
- Violations of law, regulations, court orders, executive orders including, fraud, bribery, or corruption
Disclosures covered by the California Whistleblower Protection Act are usually made to California’s Commission on Judicial Performance or the Auditor’s Office.
Linda is a nurse who treats California prison inmates. She is employed by the Department of Corrections and Rehabilitation. In the course of her work, she notices that some of her colleagues are hostile to the inmates and they sometimes refuse to be thorough in treating illnesses or injuries. In Linda’s opinion, this behavior endangers the health of some prisoners. For this reason, she reports her observation to a prison administrator and also to the Auditor’s Office. Her complaint is investigated and some of the nurses are transferred to other positions. It turns out that Linda’s supervisor has a close friendship with some of the nurses who were transferred. As a result, Linda’s supervisor begins to treat her foully and assigns her to the toughest nights shifts. This is an example of whistleblower retaliation under Government Code 8547 GC.
Related Whistleblower Protection Laws
California workers ought to understand other laws that protect employees in specific situations. These include:
- FEHA retaliation
The Fair Employment and Housing Act (FEHA) is the main statute that protects employees against employment discrimination and workplace harassment in California. In addition, this law prohibits employers from retaliating against workers who report or oppose illegal activities. An employee can file a lawsuit if retaliated against or wrongful termination under the FEHA.
- Qui tam whistleblower retaliation
If an employer has committed embezzlement or fraud with regards to government funds, the “qui tam” section of the California False Claims Act allows employees to sue their employer on behalf of the state government. Consequently, the employee can as well sue for retaliation if the employer retaliates or terminates the employee for bringing a qui tam lawsuit.
- Sarbanes-Oxley whistleblower laws
The Sarbanes-Oxley Act of 2002 was designed and enacted to offer whistleblower protection to investors from fraudulent accounting by publicly-traded companies. The whistleblower protections of this act give public companies employees the right to sue their employer for retaliation against them for reporting to a supervisor or the federal government about suspected securities fraud.
Retaliation Protection when the Employee is Wrong about the Employer Violating the Law
California Whistleblower protection laws still protect employees even if it turns out the employer did not actually engage in illegal activities. All that matters is that he/she reasonably believed that the employer violated the law. However, the law does not protect retaliation for employee complaints about dislikes. For an employee to be protected from retaliation or termination, he/she must report a suspected violation of state or federal law, regulation, or ordinance that has provisions to protect employees who report their employers.
Options Available for Victims of Whistleblower Retaliation
If your employer retaliates against or fires you for acting as a whistleblower, the best and most powerful option would be filing a lawsuit in California Superior Court. Also, California whistleblower protection laws give you the option of filing an administrative complaint with the associated state agency in addition to or before filing a lawsuit.
- Labor Code 1102.5 LC
If your employer has violated the whistleblower protections of LC 1102.5 and you want to sue them, you must first notify your employer via certified mail and the California Labor and Workplace Development Agency via an online form. Once you’ve filed this notice, the agency may decide to investigate your complaint. But if it chooses not to do so, then you must receive a notice explaining that within 65 days, at which point you may go ahead with filing your own lawsuit.
- Labor Code 6310 and 98.5
If your boss retaliates against you for reporting occupational health/safety or labor law violations, you may file a complaint about the retaliation with the California Labor Commissioner. But not that this is not obligatory. If you wish, you and your employment attorney may avoid this step by directly filing a lawsuit.
- California Whistleblower Protection Act
If you’re a state government employee and a victim of whistleblower retaliation, the process is a bit different. Under the California Whistleblower Protection Act, you must first file a complaint with the California State Personnel Board before you can file a lawsuit against the agency that employed you.
Statute of Limitations for Whistleblower Retaliation Complaints or Lawsuits
As with most California employee lawsuits, civil lawsuits, or administrative complaints, filing a complaint or lawsuit under the different California whistleblower protection laws is subject to statute of limitations or deadlines. The time limits for filing administrative complaints and/or lawsuits regarding whistleblower retaliation or termination under California employment laws are as follows:
- 3 years to file a lawsuit in California Superior Court under Labor Code 1102.5 (general whistleblower protection)
- 6 months to file a complaint with California Labor Commissioner or 3 years to file a lawsuit under Labor Code 98.6 (whistleblower protection for reporting labor law violations) and Labor Code 6310 (whistleblower protection for occupational health and safety complaints)
- 12 months to file a complaint with California State Personnel Board under Government Code 8547 (whistleblower protection for state government employees)
Comparing California Whistleblower Retaliation to Public Policy Wrongful Termination
While Whistleblower retaliation involves the employer punishing an employee for reporting engagement in illegal activities, public policy wrongful termination in California applies to cases where employees are fired. This means that an employee may not be terminated for reasons that are against the fundamental public policy. Simply put, an employer in California may not fire an employee for:
- Performing a legal obligation
- Refusing to violate a law
- Reporting a suspected violation of a law of public importance
- Exercising a legal right or privilege
Public policy wrongful termination does not apply to cases where employees merely face retaliation or discrimination at work. It only applies where employees lose their jobs. However, the difference between public policy wrongful termination and whistleblower retaliation can become hazy if the employee is fired for reporting a suspected violation of law at their employer. The legal theory that you and your employer choose to use will determine what will be helpful to your case. In many instances, employees terminated for disclosing illegal activities by their employers may find that it’s in their best interest to file a lawsuit both under the theory of public policy wrongful termination and under a particular whistleblower protection law related to the case.
Damages in Whistleblower Retaliation Cases
Whistleblower retaliation can have a serious toll on the victim, including emotional distress, reputational harm, and lost pay and benefits. Indeed, retaliation can derail a career and deprive one of future earnings. While whistleblowers ought to be awarded for doing or wanting to do the right things, they all too often find themselves marginalized and ostracized. California and federal whistleblower protection laws provide several remedies to compensate retaliation victims. The damages that one can receive as compensation for retaliation vary based on the legal basis and facts of your whistleblower protection suit. With that in mind, damages may include:
Lawsuits under Labor Code 1102.5
For lawsuit filed under Labor Code 1102.5, you might receive:
- Damages for pain and suffering/emotional distress resulting from the whistleblower retaliation. This can include compensation for mental suffering, grief, physical pain, humiliation, anxiety, or loss of enjoyment of life.
- Back pay. If your employer wrongfully terminated you from your job after being a whistleblower, you may be eligible for lost wages and benefits that you would have earned if there were no adverse employment action. This can be in addition to the value of your benefits minus the amount of wages you could have earned or actually earned from substantially similar employment. Back pay awards may also include promotions and salary increases the complainant would have received.
- Punitive damages. These are meant to punish the employer and act as a warning to others. Punitive damages may be awarded if the employer is found guilty of malice, oppression, and malice.
Labor Code 6310 and 98.6
For lawsuits of retaliation for reporting violations of occupational health and safety or wage/hour laws, you may choose to file a complaint with the California Labor Commissioner. After an investigation, the Labor Commissioner may determine a violation of whistleblower protection laws, your employer may be ordered to:
- reimburse you for lost wages and benefits with interest,
- rehire or restore you to your previous position, and/or
- reimburse you for attorney’s fees.
Whistleblower Protection Act
Under California’s public employee whistleblower protection act, your complaint will be investigated by the State Personnel Board. If it’s determined that you suffered whistleblower retaliation, the State Personnel Board may order the following damages/remedies:
- back pay,
- compensatory damages,
- restoration of lost service credit,
- reinstatement in your previous position, and/or
- expungement of employment records associated with the whistleblower retaliation.
Finding a Whistleblower Attorney Near Me
If you believe you’ve been a victim of retaliation or were wrongfully fired because you engaged in whistleblower activities, you do have rights that need protecting. Due to the complexity of whistleblower cases, you need to contact a California whistleblower attorney today. Simple filing errors and other similar mistakes can lead to a lost case. The attorneys at Stop Unpaid Wages have successfully offered retaliation protection to clients and it’s their job to keep your best interests in mind. To learn more about California whistleblower laws or get representation in your case, click here or call us at 424-781-8411 to schedule a complimentary consultation.