Whistleblower Protection

Whistleblower Protection

You know that what they are doing is wrong.  But, you just do not know what to do next. 

What protections does California afford whistleblowers? 

California offers many whistleblower protections. 

If you are an employee and you complain, or stand up for someone complaining, about illegal activity, you are protected from retaliation.  So, for example, if you complain about racial discrimination in the workplace, and your employer fires you because of your complaint, you have a cause of action for wrongful termination in violation of public policy under California’s Fair Employment and Housing Act.    

Or, say you are a healthcare worker, and you complained about understaffing, or some other issue that would adversely affect patient care, and you get fired for complaining, you probably have a cause of action for whistleblower retaliation, and wrongful termination under the labor code, and you might even have a cause of action for whistleblower retaliation, under Section 1278.5 of the Health and Safety Code.  Health and Safety Code Section 1278.5 is huge for whistleblowers because it presumes that an adverse employment action (like a demotion, or a termination) is retaliatory if it happens within 180 days of the complaint. 

Or, say you are at work, and you complain about unsafe working conditions.  California’s Occupational Safety and Health Act (Cal-OSHA) protects employees who complain about those things.  If you are fired because you complained about unsafe working conditions, you have a cause of action for wrongful termination in violation of public policy. 

Or, say your employer is asking you to do something that is illegal, and you refuse.  Your employer cannot terminate you for refusing to commit an illegal act. 

Labor Code Section 98.6 prohibits employers from discriminating against employees for exercising their rights under the labor code.  So, if your employer isn’t paying you appropriately, and you file a labor commissioner claim, your employer cannot retaliate against you. 

Finally, Labor Code Section 1102.5 acts as sort of a catch all for employee complaints.  Under Labor Code Section 1102.5, an employer cannot retaliate against an employee who makes a good faith complaint about activity they believe is illegal, regardless of whether or not the activity is actually illegal. 

So, say you complain because you think you are entitled to double pay for holidays (even though the law does not require that), and your employer terminates you for complaining, you have a cause of action for wrongful termination under Labor Code Section 1102.5. 

There are lots of federal laws that protect employees from retaliation too.  In addition to OSHA, there are whistleblower protections in the Consumer Product Safety Improvement Act (CPSIA), which protects employees of consumer product manufacturers, importers, private labelers, distributors, and retailers.  There is the FDA Food Safety Modernization Act, which covers employees of companies engaged in manufacturing, processing, packing, transporting, distributing, receiving, holding, or importing food.  There is the Moving Ahead for Progress in the 21st Century Act (MAP-21) which prohibits motor vehicle manufacturers, part suppliers, and dealerships from retaliation against employees for reporting motor vehicle defects, reporting violations of motor vehicle safety standards , or engaging in other protected activities. 

There is the Asbestos Hazard Emergency Response Act, which prohibits private sector, state and local government, certain Department of Defense schools, and certain tribal schools from retaliating against employees for reporting potential violations of environmental laws relating to asbestos in elementary and secondary schools.  There is the Clean Air Act, which protects employees from retaliation for reporting potential violations relating to emissions from area, stationary, and mobile sources.  There is the Comprehensive Environmental Response, Compensation, and Liability Act, which protects employees against retaliation for reporting potential violations relating to the cleanup of uncontrolled or abandoned hazardous waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants.  There is the Energy Reorganization Act, which protects employees who basically have anything to do with the Nuclear Regulatory Commission (NRC), and the Department of Energy (DOE), from retaliation.  There are also the Federal Water Pollution Control Act, the Safe Drinking Water Act, the Solid Waste Disposal Act, and the Toxic Substances Control Act, which all prohibit retaliation against employees for making complaints. 

On the financial side, there is the Anti-Money Laundering Act, which protects employees from complaining to their employer, the Secretary of the Treasury or the Attorney General.  There is the Consumer Financial Protection Act (CFPA), which protects employees of employers who offer, or provide, a consumer financial product, or service.  There is the Criminal Antitrust Anti-Retaliation Act.  There is also the Sarbanes-Oxley Act (SOX).  Employees who work for a company that has a class of securities registered under Section 12 of the Securities Exchange Act of 1934, or is required to file reports under Section 15(d) of that Act are covered under SOX.  Then there is the Taxpayer First Act.  There is also the False Claims Act, which prohibits retaliation against an employee for blowing the whistle of submitting fraudulent billing to the Federal Government.  California has its own version for the State Government.  The False Claims Act not only prohibits retaliation, but it also allows a person to share in the government recovery.  So, say, for example, you work somewhere that is fudging Medicare billing, you can complain and institute a “qui tam” action as a “relator”.  You can recover from 15 to 30% of the total the government recovers, which could be significant. 

What should I do if I am planning on blowing the whistle?

The first thing you should do is talk to a lawyer, who understands whistleblower cases.  Sometimes, what your employer is doing is perfectly legal, and complaining about it, is only going to rock the boat and get you in trouble.  Other times you will need to gather evidence.  But, when, and how, you gather evidence is important.  Gathering evidence at the wrong time, or in the wrong way, can undue your claims and even subject you to criminal prosecution yourself.  After you talk to an attorney, you should have a better idea of what steps you should take. 

We have been representing whistleblowers since 2010.  We’re passionate about helping those who want to help others.  We offer a free, confidential case-evaluation.  If we think we might be in a position to help out, we will reach out to schedule a free consultation.  If we don’t think we’re in a position to help out, we’ll provide you with resources to help you understand the law, find a lawyer, and even some DIY resources.  We take most cases on a contingency fee basis, which means we only get paid a percentage of whatever recover for you.  If you are aware of illegal activity, you probably want to act fast to stop the activity from continuing.  Additionally, some statutes, like the False Claims Act, only reward the first to file.  So, why wait? 

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