California’s whistleblower protection laws provide protection to employees who report suspected violations of law or regulations by their employer, when the employee communicates the violation to a supervisor or to any person employed by the employer who has authority to investigate the violation, and/or any of a number of government, administrative, or law enforcement agencies. Such protections can be found in a variety of California laws.
California Labor Code section 1102.5 prohibits retaliation against any employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, or to a superior in the employer’s organization, so long as the employee has reasonable cause to believe that the information discloses a violation of law or regulation. The Legislature expanded section 1102.5 to protect not only actual whistleblowers, but also those who an employer simply fears may be a future whistleblower. In addition, the statute forbids an employer from retaliating against an employee “for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”
California Labor Code section 98.6 prohibits employers from retaliating, discriminating, or taking adverse action against an employee or a prospective employee for exercising any right under the Labor Code, filing or participating in a complaint with the California Division of Labor Standards Enforcement (DLSE), whistleblowing, or participating in political activity or a civil suit against an employer, among other activities. The statute also bars employers from retaliation because a worker has made an oral or written complaint that he or she is owed unpaid wages.
Government Code section 12940, the Fair Employment and Housing Act (“FEHA”), contains California’s main law prohibiting workplace harassment and employment discrimination. The FEHA also includes a provision prohibiting employers from retaliating against employees who oppose or report violations of that law. Subsection (h) makes it unlawful for any employer to discharge, expel, or otherwise discriminate against an employee because the employee has opposed any practices forbidden under FEHA or because the person has filed a complaint, testified, or assisted in any proceeding under FEHA.
These three statutes are merely a few of the expansive catalog of laws that provide whistleblower protection. Employers must remain well-informed of the current whistleblower laws and must be able to identify and prohibit workplace actions that constitute whistleblower retaliation.
Whistleblower retaliation can take multiple forms in the workplace. Retaliatory actions include, but are not limited to:
- Firing or laying off;
- Denying overtime or promotion;
- Denying benefits;
- Failing to hire or rehire;
- Intimidation or harassment;
- Making threats;
- Reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings);
- Reducing pay or hours;
- More subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance;
- Blacklisting (intentionally interfering with an employee’s ability to obtain future employment), and;
- Constructive discharge (quitting when an employer makes working conditions intolerable due to the employee’s protected activity).
California’s whistleblower laws give employees an arsenal of effective tools with which to litigate whistleblower claims. Defending such lawsuits alone can be a very expensive and time-consuming ordeal. If the employee prevails, they may be entitled to a variety of damages, including lost wages and benefits, pain and suffering, compensatory damages, punitive damages, and attorney’s fees, among others.
Recent developments have expanded these protections and enhanced the ability for employees to recover. If you have any questions regarding whistleblower issues, please do not hesitate to contact Bremer Whyte Brown & O’Meara, LLP. Our Employment Law Practice Group is well equipped to assist employers with the unique challenges presented to them by state and federal employment law requirements, including whistleblower retaliation laws.