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WHISTLEBLOWER RETALIATION

What Makes Someone A Whistleblower and How Are Employees Protected From Retaliation?

 

California has extensive laws designed to protect whistleblowers from retaliation. Retaliation claims are now the most common claims brought by employees in employment lawsuits. California’s Labor Code section 1102.5 prohibits an employer from retaliating against an employee for disclosing or reporting what they believe to be a violation of state or federal law, or a local, state, or federal rule or regulation. Any such disclosure or report of any violation is a protected activity whether the report or disclosure is made either internally or to a government agency or law enforcement. A protected internal whistleblower report can be made to a person with authority over the employee, such as a supervisor, or another employee with the authority to investigate or correct the violation. An employee does not need to prove their employer was in fact violating a law but rather the employee only needs to have a reasonable belief that a violation has occurred. Employees are also protected from retaliation in cases where they refuse to take part in an activity that would violate state or federal law, or a local, state, or federal rule or regulation. California’s whistleblower protection statues even extend as far as protecting employees from retaliation even in cases where an employer suspects they will report a local, state, or federal violation by testifying before or providing information to any public entity conducting an investigation, hearing, or inquiry. In addition to the broad and general whistleblower protection laws, California also protects employees from retaliation in the following circumstances:

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  • Discussing their wages or other working conditions (California Labor Code section 232)

  • Reporting or complaining about unpaid wages to an employer (California Labor Code section 98.6)

  • Reporting unsafe work conditions including violations of workplace violations of California Division of Occupational Safety and Health (“OSHA”), or a work-related fatality, injury, or illness (California Labor Code sections 6310)

  • Refusing to work in conditions that violates California Division of Occupational Safety and Health (“OSHA”) regulations, or conditions that poses a real and apparent hazard to employees (California Labor Code sections 6311)

  • Resisting or reporting discrimination, harassment and/or retaliation on the basis of a protected category such as age, disability, race, sexual orientation, etc. (Government Code section 12940)

  • Using rights given to employees for medical leave under the Family and Medical Leave Act (“FMLA”) or California Family Rights Act (“CFRA”)

  • Advocating for improved medical patient care or reporting unsafe patient care and conditions (Health and Safety Code section 1278.5)

  • Reporting unpaid overtime or meal break violations (California Labor Code section 98.6)

  • Filing for, or indicating an intention to file for, workers’ compensation (California Labor Code section 132(a)

  • Refusing to report to work, or leaving, when an employee has a reasonable belief that a workplace is unsafe due to emergency conditions such as natural disaster or criminal acts (California Labor Code section 1139)

  • Using a mobile device to seek emergency assistance, assessing whether a situation is safe, or communicating with a person to verify their safety during emergency conditions such as a natural disaster or criminal acts (California Labor Code section 1139(b)

  • State employees who have reported waste, fraud, abuse of authority, violation of law, or threat to public health (Government Code section 8547)

  • Employees who update personal information, such as a social security number, as long as the update does not directly relate to the qualifications required for the employee’s job duties (California Labor Code section 1024.6)

  • Testifying as a witness in a co-workers’ workers’ compensation hearing (California Labor Code section 132(a)

  • Reporting or taking legal action to correct sex-based or race-based wage discrimination (California Labor Code section 1197.5)

  • Becoming a victim of domestic violence, stalking, or sexual assault (California Labor Code sections 230(c), 230(e), 230(f), or 230.1)

  • Reporting suspected securities fraud to the federal government or a supervisor (Sarbanes-Oxley Act of 2002)

  • Reporting a public corporations’ inappropriate actions (Dodd-Frank Wall Street Reform and Consumer Protection Act)

  • Protection for public education employees from public school administrators for disclosing improper government activities (California Education Code sections 44110-44115)

  • Being the family member of someone who reports unsafe work conditions (California Labor Code section 6310)

 

What if I am an At-Will Employee?

 

The State of California is an “at-will” state where it is presumed an employee is “at-will” and therefore an employer or employee can end employment at any time for almost any reason. However, that does not mean that employers can terminate an employee for an illegal reason. As an example, illegal reasons for terminating employment not covered by “at-will” employment include a retaliatory termination of an employee because an employee made a whistleblower report, or engaged in other protected activity, such as reporting an unsafe work environment or discriminatory employment practices.

 

In addition, although employees are presumed to be “at-will” there are circumstances that may have created a contract of employment, which means your employment may no longer be considered “at-will.” Often times an employer’s words and actions can form the basis of a contract to not terminate employment without good cause. Our employment attorneys are experts in performing the legal analysis required to determine if an employment contract was formed and whether your termination was carried out in breach of contract.

 

How Do I Take Action Against my Employer for Whistleblower Retaliation?

 

Taking legal action of any kind, including action against your employer, can be complicated.  There are many steps that need to be followed before a lawsuit is filed, and even more steps must be completed after.  These steps may include obtaining a right-to-sue, filing a government claim, filing a labor commissioner complaint, and requesting your personnel file, among many others.  Although many of these steps can be completed by the employee, often times employees filing the forms on their own behalf may miss deadlines or omit important claims that should have been included. For this reason, it is highly advisable that you consult an attorney that focuses on employment litigation.  Our whistleblower retaliation attorneys and employment attorneys will ensure that all of the required and advisable steps are met and will maximize your chance of winning your lawsuit. 

 

What If I Have No Evidence of Whistleblower Retaliation?

 

Many people who suffer from whistleblower retaliation fail to take any action against their employer because they believe that there is no evidence of their employer's illegal actions.  However, employment lawyers have various ways to obtain the evidence needed for your lawsuit.  For example, they can request documents (including emails and other electronic evidence) from your employer, subpoena witnesses to testify, and even take the deposition of the people who retaliated against you.  Even evidence that the excuse – or pretextual reason – that your employer gave in an attempt to justify retaliation or an adverse employment action is false can help prove your wrongful termination case. Very often there is more evidence than you might think exists, and this evidence can help strengthen your case.

 

What Is My Case Worth?

 

Generally speaking, wrongful termination cases have three types of damages: 1) lost earnings; 2) emotional distress; 3) punitive damages.  The value of your case depends in large part on these factors, as well as a fourth - liability. 

 

If you are terminated in retaliation for whistleblower reports you are likely entitled to compensation for your lost earnings - that is, the wages and benefits you would have earned had your employer not terminated you.  However, you are still required to "mitigate" your lost earnings damages.  Mitigation means applying for other jobs and getting another job as soon as possible.  It's important to be able to prove that you've attempted to mitigate your damages, so save all job applications, all emails and letters to and from potential employers, and any other documents related to your job search.

 

Anyone who experiences retaliation and harassment likely sustained emotional distress as a result - that emotional distress might appear as depression, anxiety, suicidal ideations, headaches, weight changes, and any other physical or mental condition.  As with lost earnings damages, it's important to document those damages if you needed and sought treatment from qualified medical providers.  If you are depressed as a result, it may be beneficial to see a therapist, psychologist, or psychiatrist.  If you have physical symptoms, seeing your primary care physician or a specialist may be warranted.  If you cannot find treatment (for example, because you no longer have insurance), an employment attorney will be able to help you get the treatment you need.

 

Punitive damages, although rare, exist to create a deterrent from other employers from behaving in a similar manner. To obtain punitive damages an employee must show that clear and convincing evidence demonstrates that an employer’s managing agent, director or officer acted with oppression, fraud or malice.

 

The last factor is liability.  Every case has good facts and bad facts.  The more good facts there are in your case, the more likely it is that you will win at trial, and the more likely it is that your employer will pay more to settle the case.  How do your attorney and your employer's attorney discover good and bad facts?  Through the discovery portion of the case, described above.  This means that the value of a case can change as both good and bad facts are discovered throughout, and why a good employment lawyer can maximize the value of your case. 

 

Are There Deadlines For Me To File A Lawsuit?

 

Whistleblower retaliation cases have numerous deadlines that can come up fast after your termination so it is important to speak to our attorneys to determine if you want to pursue an action as soon as possible. Generally speaking, public employees are required to submit a Government Tort Claim form within six (6) months for a whistleblower retaliation claim. Retaliation claims under Labor Code section 98.7 must be presented to the Division of Labor Standards Enforcement within one (1) year. A wrongful termination claim against a private employer can generally be filed two (2) years after termination. However, violations of the Fair Employment and Housing Act involving discrimination, harassment and/or retaliation based on protected characteristics or activity can be generally brought up to three (3) years after the incident occurred. It is important to retain an attorney and file a lawsuit before the statute of limitations – or deadline – expires on any of your potential claims.

 

 

How Does the Process of Suing My Employer for Whistleblower Retaliation Work?

 

Every case is unique, but most cases follow a similar path: First, the employment attorney will collect information from you to draft a demand letter.  A demand letter tells your employer that you will be filing a lawsuit against them if they do not agree to settle the case soon.  Sometimes the employer will agree to settle, and the case is finished.  If the employer refuses to settle (or if they fail to respond at all), your attorneys will promptly file a lawsuit. 

 

The lawsuit (called a "Complaint") tells the employer the basis for your claims - what you allege they did wrong, and the laws under which those actions are illegal.  The employer must the file a response, often called an Answer. 

 

After the Complaint and Answer have been filed, both sides begin "discovery." Discovery consists of written questions that each side asks the other, as well as depositions of various people.  In a deposition, the attorney for one side asks questions to a person from the other side under penalty of perjury.  Once discovery is completed, both sides will typically attempt to resolve the case at mediation.  In mediation, a neutral party - called the mediator - will talk to both parties in an attempt to get them to agree.  If both sides do, the case is finished.  If they don't, the attorneys begin to prepare for trial.  While some cases do go to trial, many cases settle beforehand. Cases can take anywhere from a couple of months to three-four years to resolve depending on the unique circumstances in each case.

 

Our employment attorneys have over a decade of experience fighting for employee rights against the largest companies in the country.  Our office handles wrongful termination claims, age, disability, gender, pregnancy and race discrimination claims, and whistleblower claims, throughout California, including Los Angeles, Orange, Riverside, San Bernardino, San Diego, Imperial, Ventura, Santa Barbara, and Kern counties.  If you've been discriminated against, harassed, or retaliated against, or if you've suffered from a hostile work environment, please contact our office for a free consultation. 

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