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/

The post CALIFORNIA LABOR CODE 1102.5 appeared first on UELG.

Whistleblowers are in charge of revealing 43 percent of all corporate and government misrepresentation, as indicated by a Price Waterhouse. This is more than the greater part of the extortion revealed by law authorization, and outside evaluators joined. Along these lines, whistleblowing assumes a vital part in keeping companies legitimate.

At the point when would it be a good idea for you to see yourself as a conceivable informant? The appropriate response is “when you can.” The sooner you recognize that you may have a whistleblowing circumstance, the better you can deal with your circumstance. If you are not on your toes, and you don’t secure yourself, you can wind up out of a vocation with no plan of action and no case.

Things being what they are, what would it be a good idea for you to do on the off chance that you trust your boss is damaging the law? The appropriate response is perplexing and relies on upon the reality of each case. In any case, a couple of general tenets may apply.

Stay alerted. Keep your eyes and ears open. If you get a correspondence that you accept is suggestive of unlawful action, make a composed note of it in a classified journal. On the off chance that you get messages that you accept reflect something illicit, make printed versions of the messages and place them in a protected place. You may require them later.

Consult with a lawyer. Consider reaching a lawyer promptly to decide whether the lead is unlawful, and, provided that this is true, how to report it adequately.

Consider making an informal complaint to your supervisor. Numerous directors are reputable and legit individuals. Numerous circumstances can be overseen by making a direct objection to your prompt manager. If you do make a verbal objection, made some record of it.

Use the Internal Hotline. Numerous companies have inward hotlines that you can use to make a complaint and for whistleblowing. These hotlines should be classified, however many are most certainly not. Numerous representatives make unknown protestations on the hotline and later discover that their directors or others in the administration know about the objection and who made it. Much of the time, the objection made on the hotline does not bring about any significant reaction by the business. Numerous hotlines are kept an eye on by outside contractual workers, or low-level HR staff.

Consider making a complaint to HR. On the off chance that the organization has a staff handbook, survey it to decide the methods you should use to make objections. On the off chance that the handbook teaches you to make your dissension to HR, consider placing it into composing Let’s face it-most HR offices exist to ensure the interests of the business, not to authorize your rights. Along these lines, you ought to view HR as “one and the same” as your boss. On the off chance that you set the objection in motion, be as particular as possible.

Do not tape record. Numerous workers trust that copying their bosses or chiefs amid private discussions is an awesome approach to “catch them.” However, by and large, it is illicit in California under Penal Code Section 632 to copy a private discussion. Truth be told, it’s a crime. So leave your recording device at home.

Photo Credit: Shutterstock/sirtravelalot

The post What to Know About Whistleblowing appeared first on UELG.

1. Talk to your family about your decision to blow the whistle. Make sure they understand that this is an irreversible action, and it may have a negative consequence for you and them.

2. Attempt to learn about any other employees who are disturbed by the illegal actions of the employer. Be discreet to avoid alerting someone who may tell the management about your plan.

3. Consider if there is a reasonable chance that you can work with the employer’s management team by going to the first level of management. If you decide that you want to go outside of the company, then look for a way to remain anonymous.

4. Assess the quantity and the quality of your evidence and your ability to hide your knowledge about the issues. Determine the risks of exposure.

5. Identify and copy all of the necessary records that support your claim before anyone is suspicious of your concerns. Use these documents for pertinent information to include in your claim, but think carefully before giving any documents to anyone.

6. Keep a careful record of events as they develop both before and after you blow the whistle. Construct a factual log of relevant actions, and make sure that this log is free of emotions and personal feelings. Keep in mind that your employer can get access to your log in the event of a lawsuit.

7. Try to build a support network of people and organizations including activists that will help you if you face a tough challenge during your time of whistleblowing. You will be in a stronger position and better protected by building a solidarity of key supporters. Often they can be more powerful than your employer will be, and this means better protection for you.

8. Pay for a legal opinion from an attorney who is competent on the subject of whistleblowing. The advice you receive will be invaluable, and you will gain some useful insight on whether or how to proceed.

9. Don’t embellish your claim with charges that are unfounded. Don’t display any cynicism when talking with the authorities. You do not want to convey the impression that you have a personal vendetta against your employer.

10. Don’t use your employer’s time or resources to engage in whistleblowing activities.

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.

The post 10 Helpful Whistleblowing Tips appeared first on UELG.