CALIFORNIA LABOR CODE 1102.5
As a responsible employee, of course, you would not want to stir up trouble in your place of work. But there are instances where you may need to disclose unlawful activities of your employer to help protect the public and others from safety hazards, fraud, and illegal conduct of employers. This will often be placing your financial security, livelihood, and careers in the balance.
The California labor law and public policy today recognize the need to encourage employees to report any information about their employer’s fraudulent and unlawful practices without any fear of reprisal. Hence, different laws have been put in place to protect employees who have engaged in whistle-blowing activities from any illegal retaliation. In California, the two most powerful statutes are designed to protect whistleblowers from retaliation in the workplace. These include the Labor Code §1102.5 and Labor Code §6310. In this post, we shall examine some information on California labor code 1102.5.
Note: While this page talks about issues relating to employment law, note that nothing contained herein should be seen as an alternative to speaking directly with a qualified employment lawyer. If you think your employer has retaliated against you for refusing your employer’s directives to infringe on the law, do not hesitate to contact our office immediately.
WHO IS A WHISTLEBLOWER?
A worker becomes a whistleblower when they disclose a reasonable belief that an employer violates a law or noncompliance with a local, state, or federal rule or regulation. It could also be someone who thinks that dangerous working conditions or work practices will put employees at risk or the employer is economically wasteful, involve in gross misconduct, inefficient or incompetent.
LABOR CODE SECTION 1102.5
California labor code section 1102.5 is generally viewed as one of the state’s fundamental whistleblower laws. The section makes it illegal for any employer or a person acting on behalf of the employer to prevent an employee from reporting information, behavior, conduct or other activities that the employee has reasonable cause to believe to violate (i) a state or federal statute, (ii) an executive order of a California Rule of Court, or (iii) any policy authorized by the State Contracting Manual or State Administrative Manual.
Pursuant to the Subsection (b) of the labor code 1102.5, it is illegal for employers or any person acting on behalf of the employers to retaliate against a worker for reporting any illegal activity, or because the employer believes the worker has reported or may report information. The Subsection (c) of the labor code 1102.5 also protects the employees if they refuse to participate in an activity or company policies that would result in a violation of the local, state, or federal law. Subsection (d) makes it unlawful for an employer or any person acting on behalf of the employers to hit back at an employee for exercising their rights under subdivisions (a),(b), or (c). For actions brought in pursuant to Labor Code section 1102.5, any person or employer who retaliates against an employee for making a protected disclosure is legally responsible for damages.
Examples Of Protected Complaints By The Labor Code Section 1102.5
- A complaint or report to a government or law enforcement agency, alleging unlawful activities.
- Refusing to participate in an activity that would violate state or federal law
- A complaint to an employee who has authority over the employee
- A complaint to a person with authority to investigate and correct the infringement.
- Testimony before a public body conducting an investigation, hearing or inquiry
A report to any of the above is protected even if disclosing such information is part of the employee’s typical job duties.
EMPLOYER RETALIATION
Often times, employers do not appreciate the fact that an employee reports them for any kind of violation, and may, therefore, seek retaliation against such an employee.
Prohibitions Against Employer’s Retaliation
- Under California’s Fair Employment and Housing Act (FEHA), it is illegal for an employer to retaliate against any worker for making a claim alleging harassment or discrimination based on a protected characteristic, such as religious creed, race, national origin, age, color, physical disability, ancestry, medical condition, sexual orientation, mental disability, sex, or marital status.
- An employer may not retaliate against an employee for making a complaint either orally or in writing for refusing to perform work under conditions that violate the health and safety laws.
- An employer may not retaliate against an employee for filing a workers’ compensation claim. Any employer who retaliates in this manner is guilty of a misdemeanor.
- An employer may not retaliate against an employee for testifying in a court hearing, filing a claim, or exercising a legal right under CHSITA – California’s Hazardous Substances Information and Training Act.
If you find yourself experiencing an employer’s retaliation, aggressive legal representation can make the difference to the success of your case. The experienced team at United Employees Law Group can mediate on your behalf. We pride ourselves on our investigative expertise and aggressive pursuit of justice for our clients.
YOUR RIGHT AS AN EMPLOYEE UNDER THE CALIFORNIA LABOR CODE 1102.5
Employees in California are entitled to report any violation against their rights to the Division of Labor Standards Enforcement (DLSE) for compensation. Employees also have the right to report any wrong that they reasonably believe to violate the law or a condition that may significantly threaten the safety or health of employees or the public. Provided the disclosures are honest, reasonable, and complained in good faith, employees or a person may do so knowing that they have the backings of the whistleblower-retribution law under the Labor Code 1102.5.
THE REQUIREMENTS OF A CLAIM FOR VIOLATIONS OF LABOR CODE SECTION 1102.5
For a whistle-blowing activity to be protected, it must involve a violation of a statute, rule, or regulation. To establish a prima facie case of retaliation under subsection (b) of the code 1102.5, the employee will have to prove, by a preponderance of the evidence that:
- They engaged in protected activity as described in Section 1102.5
- They have suffered an unpleasant employment action (such as termination, negative performance evaluation, demotion, and pay reduction.
- There is a causal connection between the protected activity and the adverse employment actions (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468).
RETALIATION CLAIM
If the employee’s claim is merely about internal policy decisions or personnel decisions, such reports may not be actionable. Subject to the subsection (b) of the Lab. Code 1102.5, a reprisal claim may be actionable even if the worker did not actually report any information, but the employer seems they did or was going to do. Likewise, the retribution may be actionable even if the worker was off beam about the activity being unlawful, provided the employee had reasonable cause to believe they were disclosing illegal activity.
Once it has been determined that the employee has engaged in protected activity, the question becomes whether the employer has subjected the employee to an adverse employment action. In addition to establishing that there was a protected activity and that he or she suffered an adverse employment action, the plaintiff must also set up a connection between the two. If the company successfully meets this burden, the worker will have to show that the explanation of the employer is an excuse for retaliation. (Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538, 1540).
If a worker reports a retribution case under Labor Code Section 1102.5, they may rely on conditional evidence by proving a close temporal closeness about the unpleasant employment action, or by direct evidence, such as an email from an employer complaining about the worker reporting of illegal activities.
Who Can File For Retaliation Claim?
Any employee can file a suit for retaliation, irrespective of language, immigration status, or identification. All employees are protected under California labor law, and the office of the California Labor Commissioner has no interest in your immigration status, nor will they report immigration issues to other agencies.
CALIFORNIA LABOR CODE 1102.5 EXHAUSTION OF ADMINISTRATIVE REMEDIES
There is no requirement that an employee looking to file a claim against a retaliation action should first exhaust administrative remedies by filing a complaint with the California Labor Commissioner before bringing a civil action for violation of Labor Code section 1102.5. Even at that, the employee has to follow an agency’s internal administrative grievance procedure. Likewise, a worker of a public entity may be required to exhaust internal administrative solutions if the appropriate civil service regulations include whistleblower claims. Hence, a counsel looking to file a complaint under Labor California labor Code section 1102.5 has to know whether or not any internal administrative solution should be exhausted before filing a civil suit.
CALIFORNIA LABOR CODE 1102.5 DAMAGES
Any employee who has been retaliated against in violation of Section 1102.5 may recover compensatory damages, including lost earnings, emotional distress damages, pain and suffering, and in extreme cases, punitive damages. These penalties are compulsory to make sure that the employer does not engage in any anti-whistleblowing behavior again.
Labor Code section 1102.5, sub-section (f) states that employers that are limited liability companies (LLC) or Corporations are liable for a social penalty not more than ten thousand dollars ($10,000) for each violation of section 1102.5. This law provides significant protections for California employees and is a powerful tool towards securing workplace rights.
CAN I CONTACT AN EMPLOYMENT ATTORNEY?
While it is not necessary that an employee who is looking to file a retaliation complaint under the California labor code 1102.5 to hire an employment attorney, it is advised that they do. This is because the employer will almost certainly have a lawyer, if not many lawyers. It is also recommended that such an employee speaks to an attorney immediately following a retaliatory incident. Note that your case can be lost forever once the limitation statute runs out.
CALIFORNIA LABOR CODE 1102.5 ATTORNEY’S FEES
A successful employee claim may be entitled to reasonable attorneys’ fees and costs subject to California Code of Civil Procedure section 1021.5, where the lawsuit has resulted in a considerable benefit to the public or a large class of persons. The applicability of the Code of Civil Procedure section 1021.5 is beyond the scope of this post but should be examined by attorneys representing whistleblowers in matters of societal importance.
WHAT IF THE WHISTLEBLOWER EMPLOYEE WAS MISTAKEN?
There are situations where the whistleblower would be wrong about the kind of violation of regulation, law, or rule established by the state or federal governments. The whistleblower law is clear on this issue. Labor Code Section 1102.5, subsection (b) states that provided the whistleblower had a “reasonable cause to believe” that there was an infringement of regulations or law, they are still protected and entitled to all the rights under the whistleblower laws.
CALIFORNIA LABOR CODE 1102.5 AMENDMENT
In the year 2014, the Legislature amended the labor law section §1102.5 to protect not only the real whistleblowers but also those who an employer thinks maybe a future whistleblower. It also covers internal employee whistleblowers, both potential and actual. Since the plaintiffs hardly have direct proof of retaliatory intention, they may prove and establish retribution by circumstantial or indirect evidence.
FINAL THOUGHT
Employee whistleblowers often swim against the tide of compliance and acquiescence in the workplace and require some measure of courage. Please note that you do not have to be sure that the conduct or violation you are complaining about is undeniably illegal. It is something a lawyer can determine, and you do not need to be a lawyer to be a whistleblower.
The legal defense on the retaliation of employers against whistleblowers in California is wide. The laws apply in different ways based on the facts of your particular scenario, but they are generally enforced and taken seriously in suitable circumstances. If you are a victim of illegal retaliation or you have questions about California labor code 1102.5, contact United Employees Law Group for a legal action tailored to suit your unique situation.
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References
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB§ionNum=1102.5
https://www.advocatemagazine.com/article/2016-june/whistle-blow-while-you-work
https://www.justia.com/trials-litigation/docs/caci/4600/4600/
https://law.justia.com/codes/california/2011/lab/division-2/1101-1106/1102.5/