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.

Photo Credit: vectorfusionart/shutterstock.com, Zerbor//shutterstock.com

References

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=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/

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Before the action is initiated, it’s always important to be cautious since the consequences might really take you to court unless your arguments are real and sound!

The following are tips for blowing the whistle in the workplace:
• Ensure that your family or a close friend is aware of your plan to start blowing the whistle.
• Seek backup by actually doing the research to establish other witnesses who are also disappointed with the same situation.
• It’s always wise to follow the ranks in the organization. If there is a criterion that should be followed then stick to it- start with the first level of authority then proceed onward if they prove to be unwilling to take action. Breaking ranks might really stir things up so you really need to have a clear mindset on this. You may end up with many cases with very intense public concerns and scrutiny!
• Your whistle-blowing should be reported in a timely manner to the government agencies. This will enable the employer to react to you rather than you reacting to the employer.
• Your relationships with the staff and the administration should be maintained! Remember its not a fight, it’s a plight!
• Ensure that every detail that unfolds before and after whistle-blowing is well recorded. This will actually help you as you seek pieces of evidence in instances of a lawsuit!
• All the relevant records and the supporting documents need to be copied before any concerns are raised.
• Isolation here may really not help you! Seek support from independent allies such as the journalist and the and the elected officials. It will be wise to reach for an activist too.
• You will need a competent lawyer for the event, so invest in this.
• Take care not to ruin the situation and embellish the charges.
• Your whistle-blowing process should be done with your own resources. Don’t use your employer’s resources.
• While working with the authorities, try not to be a cynic. You can still trust them even when you know there is something wrong.

Some frequently asked questions are:

1. Should I notify my employer before start whistle-blowing?
   The answer here is yes, depending on the reputation of the company. Some companies are so keen on the reputation and they will want to protect by all means. It’s good to notify them so that they may take appropriate action. whistle-blowing is only relevant when all other attempts have failed!
   2. What if you’re fired before you initiate?
   You can still take the action if the employer followed you with adverse situations concerning your account!

To conclude, the United Employees Law Group (UELG) are ready to protect the rights of the whistle blowers especially on the grounds of exploitation. File your case properly with all the details and you will surely get assisted in instances of improper termination or harassment by your employer!

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A whistleblower is an employee who discovers and reports wrongdoing, which is usually some form of illegal activity on the part of the company as a whole or by another employee. This might have to do with breaking the law, violating a code, or violating a safety ordinance. But very often it is a case of discrimination that is being reported, something having to do with race, age, gender, religion, sexual orientation or disability. Reporting sexual harassment also falls into this category as well as filing a worker’s compensation claim.

Once the report is made the employee is at risk for being retaliated against by their employer. There are many forms of retaliation with the most common ones being unpaid administrative leave, reduced pay, a demotion, poor reviews, write-ups, being passed over for a promotion and in extreme cases, termination. In the case of being terminated due to retaliation, it is most likely a wrongful termination.

The law regarding retaliation is interesting in that maybe your manager or some other individual at the company is retaliating and making it difficult for you. However, in the eyes of the law the company itself is responsible and held liable for that employee’s actions against you.

In 1998 a ruling came down from the California Supreme Court that individual supervisors and managers cannot be personally held liable for retaliating against an employee. The liability falls fully on the company because according to the California Fair Employment and Housing Act, it is illegal for any labor organization, employer, employment agency or individual to retaliate. The company in the end is liable as they are responsible for the supervisor or manager’s acts of retaliation.
Labor law can be very complex. If you have concerns about your employment you are well advised to contact a California attorney specializing in labor law so that you know and understand your legal rights.

If you would like to inquire about this article or anything on our blog, please call UELG at:

San Diego – (619) 342-1242

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How much is it worth and are you opening the door to unwanted scrutiny of your own life by filing a suit against your employer?

This aspect can be largely determined by the course of action chosen by your labor attorney. For instance, if your lawyer believes you can get a larger settlement based on emotional trauma due to the unfair treatment that you faced on the job, then you will have to show this emotional trauma. This can mean getting personal, and not just since the “trauma” occurred. When trying to ascertain whether there was emotional damage done by your company, the defense will dive deeply into your life to try and show that whatever emotional issues you do have, were there long before they did whatever you say they did.

If you are seeking a case based on only emotional distress, this is clearly a consideration you have to make.  How much are you willing to divulge to a courtroom full of people?

The best answer is a somewhat obvious one; you need to have a case based on hard facts!

The approach we use at United Employees Law Group is an all angles one. We know how to ask the RIGHT questions so that we can dig up the HARD FACTS.  Numbers don’t lie or change their opinion. Numbers like the ones on your time sheet or computer logs, video from security cameras, etc., are the things that help us win cases for our clients, often without even having to set foot in court. In truth, if an attorney does their job right they end up in court very little. The aim of building a great case is to present such evidence to your employer and their attorneys that they know it will likely end in a large settlement and a lot of court fees, so that it benefits them to settle out of court and pay you without dealing with a long, drawn out court battle.

If you are ready to talk about your issues at work or mistreatment by a former employer, CALL NOW. The team at United Employees Law Group is here to help you build the case you need to win.

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The laws for whistleblowing in the United States encourage everyone to disclose information about illegal activities that they have witnessed or known about in their course of work. Through the intervention of the U.S. Congress, whistleblowers are all given protection against reprisals and are even encouraged to expose illegal acts that they know about by means of giving incentives and financial rewards.

The Whistleblower Protection Law

The whistle blower protection law generally states that “No company or any employee, officer, contractor or subcontractor, or even an agent of such company, may dismiss, suspend, demote, harass, threaten, or in any other way discriminate against a particular employee because of any lawful act performed by the employee”.

This enactment protects the rights of any employee who is courageous enough to report illegal actions of his employer against possible retaliation. This protection is highly essential for the federal government and other relevant agencies to learn about the unlawful acts or unethical practices of some corporations that they would have otherwise not been made aware of.

Constraints under the whistleblower protection law.

1. The law strictly covers employees for exposing illegal acts which are only within the company. However, various public policies might arise that could as well protect the employee from retaliation

2. If it turns out that the employer did not break any law by the perceived and reported acts, the employee is entitled to protection from retaliation only if he reasonably believed that the employer was committing an illegal act.

3. The whistleblower protection statute doesn’t cover retaliation from an employer for complaints that regard to personal loathe. The law restricts the use of personal grudges or political differences to file complaints against one’s employer. Under such circumstances, an employee won’t be protected by the whistle blower protection law.

Conclusion

If you believe that you hold certain information about illegal activities committed by government agencies, organizations, or companies, do not hesitate to seek the help of a professional litigator. There are many lawyers specializing in litigation for whistleblowing cases that can help and guide you through the process. Let the truth be known- not because of what you will get for telling the truth, but because telling the truth is right. Serve your country by keeping your eyes open and reporting all forms of fraud that may come to your attention. After all, the U.S. government is intent on taking care of people like you by offering incentives to you if the case is proven in court and over and above all; offering you protection against retaliation from your employer.

Photo Credit: Shutterstock/Suzanne Tucker

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You are not required to notify your employer before blowing the whistle. If you disclose information to a government or a law enforcement agency or to another employee who has the authority to correct the problem, then you are protected by state and federal law. However, while this protection means that firing you would be illegal, it may not stop your employer from doing so, or from retaliating in another way. Keep in mind that regulating employer behavior does not automatically prohibit improper behavior, but the employer faces consequences for any retaliation they take against you.

Before discussing your options if you experience retaliation, let’s review the conditions for receiving the protection of the laws. The law protects an employee who discloses violations even when doing so is not part of their job duties. Additionally, reporting a suspected violation either internally or externally is a protected act. This means that if you have a reason just to suspect that a violation has been committed, you can report it to the appropriate authorities.

Whistleblowers need some evidence that would be credible to the authorities. The more evidence that the whistleblower provides, the more likely it is to result in corrective action. It may not be wise to turn over corporate records since this action could be considered by the employer to be an illegal act. However, it would be appropriate to describe the records that will support the claim of wrongdoing. A whistleblower needs to be sure that they are not letting personal grudges against the management cloud their judgment.

A whistleblower can protect their job by being accurate in their report and following up to make sure they know the disposition of their claim. Job protection will be enhanced if their claim was acted upon.

Employers are prohibited by law from retaliating if they believe an employee has disclosed or may disclose reasonably-believed violations. The office of the California State Auditor provides information on how to file a complaint about a violation of state whistleblower laws.

If you, or someone you know, are facing legal issues in the workplace United Employees Law Group has answers, Call Today for your free and confidential case review. Please feel free to CONTACT US with any questions about this blog or your exact situation.

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The violation of existing laws of wages on public construction projects is also known as theft of wages. These violations of prevailing laws of wage on public works projects are investigated by the Public Works Unit of the office of the Labor Commissioner. If you know about a labor violation committed by an employer on public construction projects then as a common man you can file a complaint, even if he not connected to that project. These violations may include non-payment of wages, non-payment of overtime, non-payment of benefits and reimbursement of medical bills, wrong classification of pay grade and bounce back of paycheck due to inadequate balance in the account.

When to file violation complaint?

A complaint regarding violation of labor laws in public work projects should be filed with the Labor Commissioner at an earliest. It should be filed within 18 months of completion of the project as it takes time to complete investigations and issuing assessments. The Labor Commissioner cannot entertain your complaint after the lapse of this time period.

How to file a violation complaint on public works?

Anyone can file the complaint with Labor Commissioner if he wants to report about the violation at some public construction project. Employees should complete the Worker Complaint Form for Public Works whereas others can use Pubic Complaint form for this purpose. This complaint form should include complete information about the project of public works, awarding body, employer, and general contractor before submitting it to the office of Labor Commissioner. You will receive a notification regarding the filed complaint with the name of investigating agency or individual.

Process of investigation

The investigator will issue a CWPA or Civil Wage and Penalty Assessment containing the number of wages due and the penalties owed by the employer, contractor or subcontractor. The contractor or employer can file an appeal against this assessment within 10 days. But he will have to pay this amount to the Labor Commissioner if his appeal is rejected.

What to expect during an investigation

The public works projects are minutely monitored by the investigating unit of Public Works Department during the investigation. They also review the time records and payrolls and interview the workers working on the spot to get an actual report regarding the dealings of the employer. They also collect evidence for non-payment of wages while inspecting the workplace.

Thus, a labor violation on a public construction project can be reported in California.

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An employer may have infringed on the First Amendment rights of an employee if the employee is deterred from complaining about discrimination. For example, if an employee complains to his or her superior about workplace conditions, and then that employee is subsequently transferred to another position in retaliation, the retaliatory adverse transfer is used as a deterrent for future speech against the company. If an employee feels that he or she may be punished for their speech, then an infringement on the employee’s First Amendment rights has occurred. Even minor acts of retaliation can infringe on an employee’s First Amendment rights.

The United States Court of Appeals for the Ninth Circuit published Thomas v. County of Riverside on August 18, 2014, wherein the Court held that Wendy Thomas’ First Amendment rights were violated when her employer transferred her position back and forth between day shift and graveyard shift, removed her from a community college teaching assignment (causing her to lose $9,000 per year), prohibited her from using break time to travel between work sites, rescinded a previously approved vacation, and removed her from a committee – all done within a short period of time after acts of speech.

Employment law can be very tricky, but we can help. Call our San Diego Employment Attorneys TODAY. 1-888-455-7434

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