Knowing what to do or where to turn can be challenging if you become aware of wrongdoings by your company. Many employees fear reporting their employer for misconduct will put their jobs at risk. However, as one of the most employee-friendly states, California has strict laws in place that not only encourage workers to speak up about violations in their workplace but also protect them against employer retaliation.
At Audet & Partners, we want you to possess the information you need to address sensitive situations in your workplace and know your rights when doing so. Understanding whistleblower laws and regulations is an integral part of that. One of the most critical labor laws for any employee in any industry to be aware of is the Whistleblower Protection Act. California enacts strict disciplinary measures against employers who violate it. Employees benefit significantly from learning how to identify and report violations.
What is a Whistleblower?
A whistleblower describes an employee who reports a violation of laws or regulations committed by their employer to a government agency, law enforcement, or other employee who has the power to investigate the complaint. Such employees might report non-compliance with local, state, or federal laws and regulations. Reportable violations include:
- Fraud
- Criminal activities
- Waste
- Public health or safety threats
- Violation of the law
Whistleblowing extends to reporting unsafe or inhumane work conditions. It also includes employees participating in investigations or refusing to engage in violations.
What is the California Whistleblower Protection Act?
The Whistleblower Protection Act protects employees against employer retaliation as a response to the employee reporting the employer for a violation. Under the terms of the act, employers are prohibited from taking adverse action against a whistleblower. Employees across most states are entitled to rights under the Whistleblower Protection Act. California, however, is known for providing the most comprehensive protection to workers under this act. So, if you’re apprehensive about the legal protections for whistleblowers, California employees can rest assured that the state’s robust legal framework offers them significant safeguards against retaliation and unfair treatment.
The nature of employer violation, as well as retaliation against whistleblowers, varies from one industry to another. Appropriately, lawmakers have expanded upon the Whistleblower Protection Act by creating codes addressing unique circumstances across various work environments. Each code serves to prevent whistleblower retaliation. California employees who know these codes are best equipped to identify and report violations.
California Whistleblower Protection Background
When whistleblower protections were first created in California, whistleblower retaliation within government agencies was the main concern. The California Whistleblower Protection Act was first passed in 1999. In its original manifestation, the act only pertained to public servants, specifically those who worked for state agencies and California state universities. Lawmakers recognized that for state employees to best serve the people, they needed the right to freely report misconduct on the part of local government agencies.
Since its introduction, the California Whistleblower Protection Act has been amended and fortified several times. In 2010, it expanded to include state court employees. Just four years later, in 2014, the law was strengthened again to protect employees who reported violations to external agencies and internal entities, such as managers or supervisors, with the power to investigate their complaints. Today, all public and private company employees are covered by the act.
In 2023, California’s legislation surrounding whistleblowers witnessed a significant update stemming from an intriguing case involving Kolla’s, Inc., a prominent nightclub in the state. The case, The People ex rel. Lilia Garcia-Brower v. Kolla’s Inc. emerged when a bartender at Kolla’s courageously reported unpaid wages to her employer, sparking a notable legal battle. She claimed that the nightclub owed her back pay, but instead of addressing her concerns, the owner unjustly terminated her employment and threatened to report her to immigration services. In a bold move to seek justice, the employee filed a formal complaint with the California Division of Labor Standards Enforcement.
The defendant attempted to refute the claim that they violated the act based on specific language. The Whistleblower Protection Act protects employees who “disclose” an employer’s wrongdoings. The nightclub owner’s legal team argued that “disclosure” implies sharing information that was not previously known. Because the employer was aware of the backpay issue, they argued that their employee’s actions did not constitute whistleblowing and, as such, were not protected.
In this case, the Supreme Court ruled in favor of the bartender, asserting the intention of the Whistleblower Protection Act is to guard employees who report all wrongdoings, whether or not previously known. Her case highlighted a blatant violation of the act, drawing statewide attention to the plight of employees in similar situations and leading to critical legal reforms. As a result of the case, whistleblower protection in California was expanded to cover wrongdoings of which the employer or external agencies were already aware.
California Labor Code 1102.5
California Labor Code 1102.5 is the formal code for the Whistleblower Protection Act California employers are mandated to follow. This Act extends robust protections to employees who report any violations of the law or adamantly refuse to engage in activities that would result in a breach of legal compliance.
Employees are assured of protection under the law, provided they sincerely believe that their employer is infringing upon local, state, or federal regulations, irrespective of the accuracy of their claims. This safeguard is crucial and remains effective regardless of the nature of the reported activities and whether they are directly related to the employee’s specific job duties. This aspect of the law ensures that employees can report potential violations without the fear of being penalized, even if their concerns are later proven to be unfounded.
Under California Labor Code 1102.5, an employer may not:
- Instate policies that would prohibit whistleblowing (such as strict NDAs that legally obligate employees to remain silent about all company activities)
- Stop employees from whistleblowing by any means
- Retaliate against an employee for whistleblowing
- Retaliate against family members of a whistleblower
Retaliation could appear in the form of the following:
- Termination
- Harassment
- Denial of access to necessary training
- Denial of access to necessary resources
- Failure to promote
- A negative and inaccurate performance review
- Threats of reporting the employee to authorities (such as immigration services)
Employers who are found to violate the California Whistleblower Protection Act could be subject to fines, including paying monetary damages and legal fees of the whistleblower, as well as restoring them to their position in the company. Employees of both private and public entities (such as state universities or government agencies) are protected under the act.
California Labor Code 98.6
California Labor Code 98.6 focuses on wages and hours violations. It protects employees who make complaints or reports regarding unpaid wages, unfair working hours, and similar violations. In the abovementioned case, The People ex rel. Lilia Garcia-Brower v. Kolla’s Inc., the club owner specifically violated code 98.6 because they retaliated against the bartender for bringing up a complaint about unpaid wages.
If you inform your employer that they have failed to appropriately pay you for hours worked, and your employer retaliates against you for making said report, they are in violation of California Labor Code 98.6.
Such retaliation could come in the form of:
- A suspension
- A demotion
- Threats
- Discrimination
Sarbanes-Oxley Act of 2002
The Sarbanes-Oxley Act of 2002 was designed to encourage employees of publicly traded companies to disclose financial fraud within the company that could damage shareholders. The Enron scandal of 2001 and similar cases inspired the act’s creation. After the energy company’s stock dropped drastically in a matter of months, whistleblower Sherron Watkins, Vice President of Corporate Development at Enron, revealed that Enron had been hiding debts and losses in its financial reports.
The Enron catastrophe devastated shareholders and spurred strict regulations surrounding financial reporting by publicly traded corporations and stringent external auditing procedures. In tandem with these regulations, the Sarbanes-Oxley Act emerged.
Under the terms of the Sarbanes-Oxley Act, if an employee reasonably believes their employer is committing financial fraud and they report said fraud, they are protected against employer retaliation. The act further protects whistleblowers who report a violation they believe will occur but has not yet occurred, so long as their belief is grounded in substantial evidence known to or experienced by the employee.
Health & Safety Code 1278.5
Health & Safety Code section 1278.5 protects employees and hospital facility staff who report unsafe medical conditions or patient care negligence. Any medical facility employee who reports such violations to an internal or external agency shall not suffer retaliation by their employer. Employers who enact retaliation can be subject to a fine of up to $25,000 per violation. The fine increases to up to $75,000 for cases of willful violations.
How to File a California Whistleblower Claim
If you suspect that your employer is breaching the provisions of the California Whistleblower Protection Act or any related regulations, you have the right to defend yourself and take decisive action. Initiating your claim by contacting the appropriate authorities is a crucial step. When filing your claim, ensure you provide comprehensive and relevant details to facilitate a thorough investigation and effective resolution of your issue. You can file your complaint directly with the Labor Commissioner’s Office, which is a primary route for such matters. Alternatively, if you are considering legal action, consulting with a legal team can provide tailored guidance and support throughout the litigation process. Taking these steps is essential in asserting your rights and seeking justice under the protections afforded by California law.
Considerations
At Audet & Partners, we regularly consult with employees who are unsure whether their employer is in violation of the California Whistleblower Protection Act. There are several elements that, when occurring in conjunction with one another, qualify as violations of the act. Below are some questions to ask yourself when preparing to file a claim.
Were you participating in a protected activity? To file a claim against your employer, you must have participated in protected whistleblowing activities. These include:
- Reporting an employer violation to an external authority.
- Reporting an employer violation to an internal authority capable of investigating the claim.
- Participating in an investigation against your employer due to a whistleblower protection claim.
- Refusing to participate in activities that qualify as an employer violation, such as fraud, criminal activity, or acts that put public health and safety at risk.
Did retaliation occur? Next, you must show that your employer participated in behaviors that qualify as retaliation. These can include:
- A demotion
- Threats
- Revoking of employee privileges
- Unfavorable working conditions
- Withholding necessary resources or training
- Termination
- An unfair performance review
- Pay reduction
- Harassment of your family members
- Benefits reduction
- Increased scrutiny
Did retaliation occur in response to a protected activity? Finally, you will need to provide a timeline showing that a) your employer was aware of your participation in protected activities and b) the retaliation happened as a response to your protected whistleblowing activity.
Statute of Limitations
Should you seek to take action against an employer who violated the California Whistleblower Protection Act, you must do so within a given period.
Employees have six months from the violation to file a complaint with the California Labor Commissioner. However, employees have up to three years to file a lawsuit against an employer for violating the Whistleblower Protection Act. If you are already outside of the six-month window to file with the Labor Commissioner, Audet & Partners can still assist you in seeking damages via a lawsuit, as long as it has been no more than three years since the violation.
Hire a Whistleblower Lawyer at Audet & Partners
The idea of going up against your employer due to a whistleblower violation can be overwhelming. Audet & Partners is prepared to be with you every step of the way, guiding you through accurately identifying and reporting your employer’s violation.
We have assisted many clients in various industries in whistleblower retaliation lawsuits and are highly experienced in whistleblower law. California employees who suspect they have faced violations under the Whistleblower Protection Act choose our team for our attentive, professional, and compassionate approach.
Our whistleblower lawyers take every complaint seriously, dedicating a great deal of energy and attention to conducting in-depth investigations. Together with each client, we gather the evidence required to make a compelling case against employers violating the California Whistleblower Protection Act. With compassion, we coach our clients through recognizing incidents of retaliation they might have unknowingly suffered and give them the confidence to seek the justice they deserve.
Every employee deserves to feel safe upholding a standard of ethics and compliance in their workplace. At Audet & Partners, we empower workers to speak up if they have rightfully reported violations and suffered retaliation. We will work hard to win you the compensation you are entitled to and restore you to a working environment where you feel respected and protected.
Don’t let workplace injustice go unchallenged. Contact us now to take the first step towards reclaiming your rights and restoring your peace of mind in the workplace.