Whistleblowing

Both federal and California law protect against whistleblower retaliation.  In the simplest terms, whistleblower retaliation occurs when an employee is punished for reporting certain activities.

Below is an introduction to various forms of whistleblowing.

 

Reporting Unlawful Conduct

Under California Labor Code § 1102.5, an employee may not be retaliated against for reporting unlawful conduct to their employer.  In order to establish whistleblower retaliation a prospective plaintiff must demonstrate that: (1) they were an employee; (2) they reported what they reasonably believed to be unlawful conduct to either a government agency or to their employer; (3) their employer subjected them to adverse employment action, such as a termination, demotion or denial of an available job; (4) the disclosure of information was a substantial motivating reason for the employer’s decision to take such action; and (5) they suffered harm as a result. See McVeigh v. Recology San Francisco (2013) 213 Cal. App. 4th 443, 468

Section 1102.5 was recently expanded beyond its prior form to now protect employees from retaliation for making internal complaints or even potential complaints about suspected violations of federal, state or local law.  Previously, California protected employees from retaliation for reporting reasonably suspected violations of state or federal laws to a government agency.  The expanded law, now provides whistleblower protections to employees who report behavior that they reasonably believe to be illegal to a supervisor or other employee with authority to “investigate, discover or correct,” or to a “public body conducting an investigation, hearing or inquiry.”   Thus, under the new law, any complaint made to a supervisor or other employee with authority to “investigate, discovery or correct” that relates to allegedly unlawful conduct may trigger the protection of California’s whistleblower statute.

 

Reporting Workplace Safety Concerns

California Labor Code § 6310(b) prohibits an employer from taking adverse action against an employee for making a complaint about workplace safety.  To prevail on a claim of retaliation under, a prospective plaintiff must show that they: (1) made complaints about workplace safety to their employer; (2) the employer subjected them to an adverse employment action; and (3) there exists a causal link between the protected activity and the employer’s action. Akers v. County of San Diego (2002) 95 Cal. App. 4th 1441, 1453.

Notably, a plaintiff does not need prove that the workplace conditions were actually unsafe.  Rather, the employee must only show that their complaints about workplace safety were made in good faith.