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California Whistleblower Retaliation Claims

California employers are prohibited from retaliating against employees who report their employers for violating public policy, regulations, and laws. This includes reporting an employer's criminal conduct to a government agency, a regulatory violation to a supervisor, wage and hour violations to the California Labor Commissioner, or financial violations to the California State Auditor. While whistleblower laws protect employees who come forward, retaliation is common. Here's some information to know about the laws in California that protect whistleblowers.

Understanding Prohibited Whistleblower Retaliation

Retaliation against whistleblowers can vary and take several forms. In general, it includes any adverse employment action an employer might take against an employee to retaliate against them from reporting the employer's violations of the law, regulations, or public policy. It can include demotion, termination, the creation of a hostile work environment, unfair discipline, failure to promote, and other actions.

Whistleblower Protection Laws in California

There are multiple whistleblower protection laws in California. Some of the most important laws protecting employees against retaliation are discussed below.

General Law to Protect Whistleblowers

Under Cal. Lab. Code § 1102.5, employers in California are prohibited from adopting rules or policies prohibiting employees from reporting misconduct or other violations. This law prohibits retaliation against employees for reporting information about an employer's legal or regulatory violation to law enforcement or a government agency, a supervisor, or someone else within the company that has the authority to investigate and address the violation.

This law also forbids employers from retaliating against employees for participating in an investigation, providing information to an investigator, or testifying at a hearing about the employer's legal or regulatory violation. Other retaliation that is illegal includes retaliating against an employee for whistleblowing while employed at a previous job and retaliating against an employee after a family member blows the whistle.

This law protects employees who come forward even if an investigation reveals that no violation occurred as long as they reasonably believed the employer violated the law or regulation. Employers can also be liable for retaliation even when they wrongly believe that an employee made a report when they did not.

For example, if an employee tells a coworker that they are thinking about reporting their employer to the state for safety violations but does not follow through with the report, the employer would still be liable if the supervisor thought the employee reported the company and fired the employee after the coworker tells the supervisor what the employee said.

An employee who pursues a whistleblower retaliation claim under this statute will have the initial burden of proving that the employer retaliated against them because of their whistleblowing. The burden will then shift to the employer to present clear and convincing evidence that it had other, unrelated, valid reasons for the adverse employment action. If the employer can't meet the burden of proof, it will be liable for whistleblower retaliation.

Protection for Reporting Wage and Hour and Labor Violations

Under Cal. Lab. Code § 98.6, employers are prohibited from retaliating against employees who report their employers to the California Labor Commissioner for violating the state's labor or wage and hour laws. This might include reporting an employer for failing to provide employees with meal and rest breaks, failing to pay a statutory employee overtime, or paying employees less than the state's required minimum wage.

Employers also can't retaliate against applicants or employees based on their reporting of previous employers or based on whistleblowing by a family member. Finally, this law protects employees who report gender-based wage discrimination to the state.

For example, an employee who reports their employer to the Labor Commissioner for failing to provide state-required meal and rest breaks and is successful in their complaint might subsequently look for a new job. The prospective employer can't refuse to hire the applicant based on their successful claim against the previous employer after learning about it.

Protection for Reporting Health and Safety Violations

Cal. Lab. Code § 6310 prohibits employers from retaliating against employees for reporting workplace violations of the state's occupational health and safety laws to the Division of Occupational Safety and Health. It also prohibits employers from retaliating against an employee's family members for reporting workplace health and safety violations.

Public Employee Protection Against Whistleblower Retaliation

Cal. Govt. Code §§ 8547 et. seq. contains the California Whistleblower Protection Act, which protects public employees against retaliation when they blow the whistle.

Unlike private-sector whistleblower protection laws, this law also protects public employees who report any of the following:

  • Regulatory violations
  • Law violations
  • Violations of court and executive orders
  • Conditions that pose significant health and safety threats to employees or the public
  • Government waste
  • Government activity that involves gross inefficiency, incompetence, or misconduct

For example, a public employee is aware of a recent executive order that would affect how the agency the employee works for should act. The employee's supervisor disagrees with the order and refuses to follow it. If the employee reports the agency to the state for failing to comply with the executive order, the employee would have a valid claim for retaliation if the supervisor fired them in retaliation.

Other Relevant Laws

There are other laws that protect whistleblowers in California in specific situations.

California False Claims Act Qui Tam Provisions

The California False Claims Act is found at Cal. Govt. Code §§ 12650-12656. This law includes qui tam provisions that allow employees to step into the shoes of the government and file lawsuits against their employers when they have inside knowledge of the following types of illegal actions by their employers:

  • Fraud against the government
  • Embezzlement of government funds

Employers are prohibited from retaliating against employees who file qui tam lawsuits against them. If an employer retaliates against an employee for filing a lawsuit under the False Claims Act, the employee can file a qui tam whistleblower retaliation lawsuit.

Fair Employment and Housing Act Whistleblower Protection

The Fair Employment and Housing Act prohibits discrimination and harassment in the workplace based on an applicant's or employee's protected characteristics. Employees who complain about illegal discrimination or harassment are protected against retaliation.

Whistleblower Protection under the Sarbanes-Oxley Act of 2002

The Sarbanes-Oxley Act of 2002 is a federal law that protects investors from fraudulent accounting practices committed by publicly-traded companies. Employees of these companies are protected when they report securities fraud to a supervisor or the Securities and Exchange Commission. They are also protected against retaliation for reporting fraud.

Whistleblower Protection in the Dodd-Frank Wall Street Reform and Consumer Protection Act

The Dodd-Frank Wall Street Reform and Consumer Protection Act was passed in reaction to the Great Recession during the mid-2000s. This law includes whistleblower protections for employees who come forward to report misconduct by public companies. Employees who are fired in retaliation for whistleblowing under this law can pursue retaliation lawsuits and demand jury trials.

Protections for Reporting Health and Safety Violations

Under Health & Safety Code § 1278.5, retaliation by healthcare facilities against nurses, patients, and other healthcare workers who report unsafe patient conditions and care can result in both civil and criminal liability.

Whistleblower Protections for School Employees

Under Cal. Educ. Code § 44110, et. seq., school employees are protected against retaliation when they report improper government activities committed by public school administrators.

Options for People Who Experience Whistleblower Retaliation

If you were retaliated against for whistleblowing under California law, you can choose to file an administrative complaint with a state agency and/or file a whistleblower retaliation lawsuit in the California Superior Court. Some of California's laws require people to exhaust administrative remedies before they can file lawsuits, however.

The following are the requirements for whistleblower retaliation complaints under different California laws:

  • Violations of Cal. Lab. Code § 1102.5 - Must file a notice with your employer by certified mail and the California Labor and Workforce Development Agency (CLWDA), which will then notify you within 65 days whether it will take your case or give you the right to file a lawsuit in court
  • Occupational health and safety violations under Cal. Lab. Code §§ 98.6 or 6310 - Can choose to file a complaint with the California Labor Commissioner or directly file a lawsuit
  • Claims by public employees under the California Whistleblower Protection Act - Must file claims with the California Personnel Board

It's important to note that the statutes of limitations for filing complaints vary based on whether you are filing an administrative complaint or a lawsuit. Administrative complaints filed with state agencies must be filed within six months, while lawsuits filed in the California Superior Court must be filed within three years.

Talk to an Experienced Labor Law Attorney

If your employer retaliated against you for blowing the whistle, you should reach out to the experienced employment lawyer at the law firm of Steven M. Sweat, APC. We have years of experience representing people who have been the victims of wrongful conduct. Call us today for a free case evaluation at 866-966-5240.

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