Whistleblower & Retaliation Protections in California

Whistleblower & Retaliation Protections in California

Both California and federal employment law provide protections for employees that report employer wrongdoing to a government agency. Employees are also protected for reporting violations of California state constitutional law. Employees who report violations are generally known as "whistleblowers."

The law provides protection for whistleblowers because it’s important that employees speak up when violations occur. Both federal and California law adopt legal standards that favor the operation of any business—as long as they’re operating in a safe and lawful manner. Employees that decide to speak up for their rights have a legal claim for whistleblowing retaliation if their employer decides to punish them for speaking out.

An employee who reports legal or employment violations helps create better workplace conditions for both themselves and their co-workers. Unfortunately, some employers disregard employee rights to save money or time. To encourage employees to step forward and report wrongdoing at their workplace, both California and Federal employment and labor law provide protections and financial incentives to support employees that exercise their legal rights.

When do whistleblower protections kick in?

An employee does not need to know for sure whether an employer has violated the law before reporting the potential violation. An employee only needs to have a reasonably based suspicion of illegal activity.

What actions can a whistleblower report?

There are many actions that whistleblowers will receive protections for if they report them to the appropriate government agency in reporting. The facts will vary from case-to-case. Common employer violations include:

  • Illegal, unethical or unsafe practices that affect the public For instance, manufacturing airplane parts in a manner that could endanger passenger safety.
  • Theft or embezzlement of company funds.
  • Employer misappropriation of public funds on government contracts.
  • Committing tax fraud or tax evasion against state or federal authorities.
  • Submitting false or fraudulent claims to the government for payment.
  • Submitting false or fraudulent records to the government.
  • Committing health and safety violations.
  • Threatening or discriminating against employees for submitting a claim for work-related injuries.
  • Violation of family or medical leave laws.
  • Defrauding customers.
  • Firing an employee for refusing to sign a noncompetition agreement.
  • Immigration law violations.
  • Failing to pay wages, overtime or any legally entitled compensation.
  • Committing environmental crimes (e.g., illegal dumping, improper toxic waste disposal, etc.).
  • Trying to silence an employee’s political activity or political speech.
  • Employer’s violation of other state or federal law.

If an employer takes one or more of these actions, the employee will receive legal protections for whistleblowing.

When has an employer “retaliated” against a whistleblower?

An employee does not have to be fired from work to file a whistleblower claim. Any action taken by an employer to punish an employee for speaking up for their rights or reporting a legal violation supports a legal claim. The list below contains just a few examples of employer retaliation:

  • Poor performance review.
  • Harassment or threats of job loss.
  • Assigning undesirable shifts or tasks which did not occur before whistleblowing reports were made.
  • Demotion to a lower working status.
  • Loss of seniority.
  • Suspensions from work without pay.

Mixed motive actions and whistleblowing retaliation.

In some cases, there may be evidence of both legitimate and illegal factors contributing to an employer’s illegal treatment of an employee. California courts have recognized this problem and only require employees show that an illegitimate factor played a motivating or substantial role in their treatment of an employee. Once this has been established, the employer has the burden to show that they would have made the same decision even if they had not taken the illegitimate reason into account.

Whistleblower remedies.

If an employer retaliates against a whistleblower who files a legal claim, the employee has several legal solutions. These include:

  • Being reinstated at work if they were terminated.
  • Suing for financial damages and for wrongful discharge.
  • Recovering lost wages or work benefits. In certain cases, double back pay is permitted.
  • Recovering damages from emotional distress.
  • Recovering punitive financial damages.
  • Recovering attorney’s fees and costs.
  • Other damages.

Other damages can depend on the facts of the employee’s situation, but certain claims can result in important money damages for the employee.

Under the False Claims Act, for example, whistleblowers can be rewarded with 15–25% of the money that the government recovers as a result of the government’s qui tam lawsuits. Qui tam lawsuits commonly involve employers knowingly submitting false or fraudulent bills to the government.

In another example, employees who report individuals or employees that evade federal taxes are entitled to a maximum of 30% of any recovered back taxes.

These strong rewards serve as an important deterrent to employer retaliation.

Time limits to file a wrongful termination or whistleblowing claim.

In every employment law case, the statute of limitations sets a cap on how long employees can wait to file their case. Cases that are filed after the statute of limitations are often not successful and can be rejected for many reasons.

In whistleblowing or retaliation cases, the statute of limitations is anywhere between 90 days to 6 years. Even though the statute of limitations can be several years, it is important for employees to act as soon as possible to obtain and preserve evidence in their favor. Before any employment law case begins, several months of investigation and preparation may be required.

Speak to an attorney immediately if you suspect your rights have been violated.

Acting on a potential whistleblowing retaliation claim.

If you feel that your employer took retaliatory action against you for speaking up, call a Los Angeles and Orange County employee-rights attorney at (949) 954-8181 for a complimentary confidential consultation to discuss your solutions and remedies under California and Federal employment and labor law.


References

Labor Code, § 1102.5.
Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 87.
Id. at 85.
Collier v. Sup.Ct. (MCA, Inc.) (1991) 228 Cal.App.3d 1117, 1123.
Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1429.
California False Claims Act, Gov't Code, § 12653; Federal False Claims Act, 31 U.S.C. §§ 3729, 3730, subd. (b).
Id.
Skillsky v. Lucky Stores, Inc. (9th Cir. 1990) 893 F.2d 1088, 1094.
Labor Code, §132a.
Bus. & Profs. Code, § 16600; D'sa v. Playhut, Inc. (2000) 85 Cal.App.4th 927, 933.
Jie v. Liang Tai Knitwear Co. (2001) 89 Cal.App.4th 654, 660–661.
Labor Code, §§ 1101–1102; Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 1477, 1487–1488.
Labor Code, §1102.5 subd. (b).
Anderson v. Pacific Bell (1988) 204 Cal.App.3d 277, 283.
Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.
Id.
Gov't Code, § 12653, subd. (c).
Labor Code, § 6310, subd. (b).
31 U.S.C. §§ 3729–3733.
31 U.S.C. § 3730, subd. (d).
I.R.C. § 7623, subd. (b)(1).
18 U.S.C. § 1514A; 31 U.S.C. § 3731, subd. (b)(1).