Whistleblower Lawyer

The term “Whistleblower” is defined by Merriam-Webster as “one who reveals something covert or who informs against another especially: an employee who brings wrongdoing by an employer or by other employees to the attention of a government or law enforcement agency.” The concept of whistleblowing on behalf of one’s government dates back to 7^th century England. United States has a long history of whistleblowing, having enacted the first whistleblower protection law in 1778. Whistleblowers have been reporting wrongdoing ever since, but it has always come at a risk. Most forms of whistleblowing were not protected by law, but even for those forms that were protected whistleblowers often risked their livelihoods to report wrongdoing due too lax enforcement or inadequate legal remedies.

In 1984, California enacted its most noteworthy “whistleblower” law in California Labor Code section 1102.5, which, as amended, protects employees who report or refuse to participate in unlawful conduct. This provision reflects the broad public policy interest in encouraging workplace whistleblowers to report unlawful acts without fearing retaliation. “This public policy is the modern day equivalent of the long-established duty of the citizenry to bring to public attention the doings of a lawbreaker.” Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1123. “The Legislature finds and declares that it is the public policy of the State of California to encourage employees to notify an appropriate government or law enforcement agency when they have reason to believe their employer is violating laws enacted for the protection of corporate shareholders, investors, employees, and the general public.” Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 927 (holding that an employee was protected under section 1102.5 even when the employer was mistaken in believing the employee had made a complaint to licensing authorities.)

“An employer. . . shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government . . . agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses 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 1102.5(c).

The term “employee” as used in the statute “includes, but is not limited to, any individual employed by the state or any subdivision thereof, any county, city, city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, political subdivision, or the University of California.” California Labor Code section 1106.

Because of the language in the statute stating an employer shall not retaliate against an employee because “the employer believes that the employee disclosed or may disclose information,” an employee may prevail on a retaliation claim even if the employee did not actually disclose any information but the employer thought he or she disclosed information or thought they were going to disclose information at some point in the future.

“Workplace anti-retaliation laws [such as section 1102.5] are the bedrock upon which all other workplace rights rest. As a practical matter, employees have no real right to minimum wage, overtime, rest breaks, worksite safety, or to be free from harassment if, upon attempting to exercise those rights, they can be fired immediately.” Assembly Bill No. 1947, 3^rd reading August 21, 2020, page 2.

“To establish a prima facie [legally sufficient to establish a fact or a case unless disproved] case of retaliation ‘a plaintiff must show

1. she engaged in a protected activity,
2. her employer subjected her to an adverse employment action, and
3. there is a causal link between the two.’” Mokler v. County of Orange (2007) 157 Cal.App 4th 121, 138.

Whether the retaliatory act of the employer rises to the level of an “adverse employment action” is determined based on the “materiality” test. “The ‘materiality’ test encompasses not only ultimate employment decisions, ‘but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career.’” “Minor or relatively trivial adverse actions by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment.” “But the terms or conditions of employment ‘must be interpreted liberally and with a reasonable appreciation of the realities of the workplace’” Patten v. Grant Joint Union High School District (2005) 134 Cal.App.4th 1378, 1387.

While one action alone may not constitute an adverse employment action, “[t]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” Patten v. Grant Joint Union High School District (2005) 134 Cal.App.4th 1378, 1390.

While there is no requirement that a plaintiff exhaust administrative remedies by filing a claim with the California Labor Commissioner before bringing a civil action for violation of Labor Code section 1102.5, a public employer may still require whistleblowers to exhaust the public employer’s internal administrative grievance procedure before filing a lawsuit. Campbell v. Regents of the Univ. of Calif. (2005) 35 Cal.4th 311, 335.

Under some circumstances, a whistleblower may be entitled to use confidential company documents to expose employer wrongdoing if the information is reasonably necessary to do so. Erhart v. Bofi Holding, Inc. (S.D. Cal. 2017) 269 F.Supp.3d 1059.

California Labor Code section 1102.5 protects employees from retaliation for “refusing to participate in an activity that would result in a violation” of a law or noncompliance with a law. In Nosal–Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, the Court of Appeal, Fourth District, Division 1 ruled that no reasonable juror could find that the employer had adopted standardized procedures to authorize nurse-led cardiac stress testing that complied with established guidelines. Therefore, a reasonable juror could find that the employer terminated the employee in violation of section 1102.5 for refusing to perform nurse-led cardiac stress testing conducted pursuant to procedures that failed to comply with the California Business and Professions Code and established guidelines.

Protection under California Labor Code section 1102.5 is not limited to the first employee who discloses such a violation. “Protection only to the first employee to disclose unlawful acts would defeat the legislative purpose of protecting workplace whistleblowers, as employees would not come forward to report unlawful conduct for fear that someone else already had done so. Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538, 1550.

California Labor Code section 1102.5 also protects employees who provide information to, or testify before, a public body conducting an investigation, hearing, or inquiry regarding their reasonably based suspicions of unlawful activity or noncompliance with the law.

An employee’s disclosure that prompted the retaliation must have involved the violation of an actual state or federal or local law, rule, or regulation and not merely involve conduct perceived as improper. “The disclosures involving the two teachers do not amount to whistleblowing as a matter of law because . . . the disclosures indisputably encompassed only the context of internal personnel matters involving a supervisor and her employee, rather than the disclosure of a legal violation. Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1385.

An employee’s refusal to violate a “guideline” offered by a public entity (where violating the same would not subject the violator to any legal consequence) may not qualify as retaliation under California Labor Code section 1102.5 because it is not a statute, rule, or regulation. Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 721 (discussing a Department of Public Health fire-rebuild guideline, the purpose of which was “’to establish standardized procedures for the review and approval of construction plans for rebuilding a structure following a fire or other natural disaster,’” but which did not subject violators to criminal or civil liability.)

An employee should be able to report illegal activity at the workplace without suffering or fearing retaliation. An employee may seek damages, penalties, and attorney’s fees in a lawsuit based on violation of California Labor Code section 1102.5. The provision allowing attorney’s fees helps ensure equal justice, in that workers, particularly low-wage workers, will be able to retain legal counsel to help them navigate the legal process.

The office of the Attorney General is required to maintain a whistleblower hotline. California Labor Code section 1102.7. See here. Employers are required to post “a list of employees’ rights and responsibilities under [California] whistleblower laws, including the telephone number of the whistleblower hotline described in Section 1102.7.” California Labor Code section 1102.8. The Attorney General is to refer whistleblower callers to the appropriate government authority for review and possible investigation.

If you have experienced whistleblower retaliation at your workplace contact our office.