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What is whistleblower retaliation?
California Labor Code section 1102.5 protects two types of whistleblowers:
(b) an employee who discloses (or may disclose) information to a government or law enforcement 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;
(c) employee who refused 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.
Employers are prohibited from retaliating against employees who engaged in either type of protected activity.
Source: California Labor Code section 1102.5.
Other Whistleblower Retaliation Laws
California Labor Code section 6310: Protects employees who report unsafe working conditions and violations of OSHA standards.
California Labor Code section 6311: Protects employees who refuse to violate an OSHA standard or perform work that would create a real or apparent hazard for another employee.
Health & Safety Code section 1278.5: Protects nurses, patients, and medical staff at licensed health facilities who report unsafe conditions.
California Whistleblower Protection Act: Protects California state employees who report violations of law and improper governmental activities, including but not limited to corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, or is in violation of an Executive order of the Governor, a California Rule of Court, or any policy or procedure mandated by the State Administrative Manual or State Contracting Manual, or is economically wasteful, involves gross misconduct, incompetency, or inefficiency.
Sarbanes-Oxley Act: Protects employees of public companies and contractors to public companies who report violations of securities laws and fraud.
Dodd-Frank Act: Protects employees who provide information related to the violation of securities laws to the Securities and Exchange Commission.
Frequently Asked Questions
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:
- a government or law enforcement agency; or
- a person with authority over the employee; or
- an employee who has the authority to investigate, discover, or correct the violation or noncompliance; or
- 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.
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This website is an advertisement for legal services. The information provided on this website is for informational purposes only and does not constitute legal advice. An attorney-client relationship does not begin until a formal written contract is signed. If you have legal questions or need legal advice, you should contact an attorney. Nothing contained in this website should be construed as a guarantee or promise of results. Past case results are not indicative of future results and are presented for informational purposes only. The case results presented herein are from cases that Brandon Ortiz had primary day-to-day responsibility for prior to founding Ortiz Law Office, Inc.