Whistleblower Retaliation Lawyer

In California Labor Code section 1102.5 cases, the employee must show that their protected activity was a “contributing factor” in an adverse employment action. If the employee meets that burden, the burden of proof then shifts to the employer to prove that it would have taken the action anyway due to legitimate, independent reasons.

Source: California Labor Code section 1102.6.

The disclosure of unlawful activity must be to:

1. a government or law enforcement agency; or
2. a person with authority over the employee; or
3. an employee who has the authority to investigate, discover, or correct the violation or noncompliance; or
4. a public body who has the authority to investigate, discover, or correct the violation or noncompliance.

• Lost wages and benefits
• Emotional distress
• Other economic losses like medical expenses, moving expenses, and job search expenses
• Punitive damages to punish private employers in extreme cases
• Attorney’s fees

Because most settlements are confidential, data on this subject are scarce. The primary drivers of settlement value are the strength of liability (how likely the employee is to win at trial), the amount of lost wages, the degree of emotional distress, and recoverable attorney’s fees.

The law recognizes a variety of methods for proving retaliation:

• Temporal proximity (timing) between the protected activity and adverse employment action;
• When the employer provides false, shifting, contradictory, implausible, uninformed, or factually baseless justifications for its actions;
• When the employer relies upon a sham or biased investigation to justify its actions, such as refusing to interview obvious witnesses;
• Evidence the employee was considered a strong employee prior to the protected activity can, in conjunction with other evidence, support a finding of retaliation;
• Refusal to reconsider the adverse employment action after a third-party investigation finds in the employee’s favor;
• Disparate treatment of the employee and other similarly situated employees;
• Evidence that the protected activity angered the employer or that the employer dismissed the employee’s concerns without investigating them; or
• The severity of the illegal activity reported by the employee can, in conjunction with other evidence, support a finding of retaliation.

Most whistleblower statutes, including California Labor Code section 1102.5, protects disclosure of legal violations to supervisors or persons with authority over the employee.

Both formal and informal disclosures of legal violations are protected under the law.

Generally speaking, the law protects all employees who make protected disclosures. However, at least one published case in California held that reporting publicly known information is not protected whistleblowing.