Whistleblower Retaliation

Whistleblower Retaliation

California and Federal laws protect whistleblowers. Whistleblowers are heroes. They oppose illegal practices. They expose corruption. But, there is a reason people say the nail that sticks up is the one that gets hammered down.

To prevent whistleblower retaliation, California has enacted:

Fair Employment and Housing Act (FEHA)
Government Code Sections 12900-12996 make up the Fair Employment and Housing Act, or FEHA. FEHA is like Title VII, but more comprehensive. It prohibits discrimination against employees because of race, color, religion, national origin, ancestry, disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military or veteran status, pregnancy or pregnancy disability leave, or the exercise of protected leave under the California Family Rights Act, or CFRA. But, it also prohibits retaliation against an employee for opposing any practice forbidden by FEHA, or for opposing any practice forbidden by FEHA.

California Occupational Safety and Health Act (Cal-OSHA)
The California Occupational Safety and Health Act of 1973 (Cal-OSHA) can be found in Labor Code Sections 6300-6718. Cal-OSHA protects employees who complain about workplace safety. Employees who make oral or written complaints about workplace safety to the employer or the government, or who institute or testify in proceeding under Cal-OSHA may not be discriminated against, or retaliated against including discharge, demotion, or other adverse working conditions, because of the such complaints. Employees are also protected if they are a relative of such an employee. Employees are also protected if the employer is worried the employee might make a complaint. Employees are also protected if they complain in good faith about working conditions they think are unsafe, or for refusing to perform work in circumstances that violate Cal-OSHA if the “violation would create a real and apparent hazard o the employee or his or her fellow employees.”

Refusing to Commit an Illegal Act
Labor Code Section 2856, says that an employer has no authority to direct an employee to perform an illegal act. So, an employer cannot terminate an employee for refusing to commit an illegal act.

Whistleblower Retaliation Under Labor Code Section 1102.5
Labor Code Section 1102.5 provides the most comprehensive whistleblower protections in California. Under 1102.5, no employer, or anyone acting on the employer’s behalf, may make or enforce a rule or policy preventing an employee who reasonably believes that a violation of or noncompliance with local, state, or federal laws, regulations, or rules has occurred from informing a government, or law enforcement agency, a person with authority over the employee (such as a supervisor), or another employee who has authority to investigate, discovery, or correct the violation or noncompliance, regardless of whether disclosing the information is part of the employee’s job duties. Additionally, employers can’t make rules or policies preventing an employee from providing information to, or testifying before a public body that is investigating, or conducting a hearing.

Moreover, no employer, or anyone acting on the employer’s behalf, may retaliate against any employee for disclosing information, or because the employer believes that the employee has disclosed, or may disclose information when the employee has reasonable cause to believe that a violation of, or noncompliance with a state or federal statute, regulation, or rule occurred, regardless of whether disclosing the information is part of the employee’s job duties.

But, 1102.5 doesn’t protect employees if they violate the attorney-client or physician-patient privilege, or who have disclosed trade secrets.

To prevail, the employee must show:
1.he or she engaged in protected activity;
2.the employer subjected him or her to adverse employment action (demotion, termination, pay cut, less favorable hours, etc.); and
3.there is a causal link between the two.

Protecting Employees Who Exercise Their Rights Under the Labor Code
Labor Code Section 98.6 prohibits employers from discriminating, retaliating, or taking any adverse employment action (termination, demotion, pay cuts, etc.) against an employee or applicant who participates as a claimant, or a witness, in proceedings before the Labor Commissioner, or otherwise exercising his or her rights under the Labor Code.

Protection for Child Labor Whistleblowers
Labor Code Section 1311.5(c) protects employees from discharge, demotion, suspension, retaliation, or any other type of discrimination or adverse employment action, if the employee filed a claim or civil action alleging any violation of the Labor Code when that individual was a minor.

False Claims Act
California’s False Claims Act makes it illegal to make false claims to the government. It’s mostly to prevent fraudulent billing. California’s False Claims Act also makes it illegal for an employer to take an adverse employment action against an employee for the employees “lawful acts…in furtherance of an action” under the False Claims Act.

Protection for Retaliation Against Injured Workers

Employers are prohibited from retaliating against employees who:
–file workers’ compensation cases before the Workers’ Compensation Appeals Board;
–received a rating, award, or settlement; or
–testified in another employee’s case.

California Whistleblower Protection Act
The California Whistleblower Protection Act protects current, and prospective state employees against retaliation when the employee discloses, “waste, fraud, abuse of authority, violation of law, or threat to public health.”

If you blew the whistle, you need the right legal guidance. An experienced whistleblower lawyer can help.