San Francisco Bay Area Whistle-Blower Lawyers
Who is considered to be a “whistleblower,” and what is unlawful “retaliation” in California?
Whistleblower Retaliation is just one of many types of unjust or prejudicial treatments employees face on the job and that we fight in court. For more about our Employment Law legal services, please see our “Bay Area Employment Law Attorney” page. Or for other types of employee work-related issues we fight for our clients, see the links to the right.
A “whistleblower” under California law is an employee who discloses information either (1) externally to a government or law enforcement agency, or (2) internally within his company to a person with authority over the employee, or to another employee with authority to investigate, discover, or correct the violation or noncompliance, or who provides information to or testifies before a public body conducting an investigation, hearing or inquiry, AND the employee has reasonable cause to believe that the information discloses:
- A violation of a state or federal statute,
- A violation or noncompliance with a local, state, or federal rule or regulation, or
- With reference to employee safety or health, unsafe working conditions or work practices in the employee’s employment or place of employment.
A whistleblower can also be an employee who refuses to participate in an activity that would result in a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, or an employee who the employer believes will report and retaliates against that employee before they report.
Whistleblowing must pertain to a violation of an existing law – not just a poor business practice, mismanagement, or embezzlement going on internally within the company.
The general definition of whistleblowing includes making internal and external complaints as well as making complaints or threatening to make complaints externally to a government authority, but also extends to providing information to and cooperating with governmental authorities, and/or testifying in court about some unlawful activity.
The unlawful activity that the whistleblower complains about could be criminal, for example embezzling of funds by the staff of his non-profit employer, but could also be a violation of civil law, for example the employer failing to track and pay employee overtime. However, the whistleblowing must pertain to a violation of an existing law – not just a poor business practice,mismanagement, or embezzlement going on internally within the company.
Recent Changes in Whistleblower Protection
Until fairly recently, whistleblower protection used to be limited only to external complaints by an employee to governmental authorities, which excluded a large number of employees whose natural reaction is to complain internally to their supervisor, some other member of management, or to people within their organization designated to receive and investigate that specific type of complaint. This gap has now been plugged up and qualifying internal complaints provide whistleblower status.
In addition, the whistleblower does not have to be correct (i.e., that the activity complained of was actually unlawful) but must only have a reasonable belief that it is unlawful. Thus, for example, an employee who complains about a workplace safety violation that results in a governmental investigation gains whistleblower protection if a reasonable person in the position of the employee would believe that unlawful activity took place. It is irrelevant whether anyone actually investigates, makes a finding of violation, the complaint turns out to have merit, or any governmental entity chooses to take any action.
Finally, the reporting internally or externally does not have to be part of the employee’s job duties.
How are whistleblowers protected in California against retaliation?
An employer cannot harass, discriminate, retaliate, or take other adverse actions against the whistleblower. By satisfying the legal requirements of a whistleblower, an employee gains the same type of protection as those based on race, gender, sexual orientation, disability, etc. These whistleblower protections exist because the state of California wants to encourage employees to bring unlawful activities to the attention of persons within the organization or the government who have the ability to investigate and fix the problems.
An employer who retaliates against a whistleblower may be required to reinstate the employee’s employment and work benefits, pay lost wages, pay civil penalties, and take other steps necessary to comply with the law.
This whistleblower protection also extends to the families of the whistleblower.
What are some examples of whistleblowing in California for which the employer cannot retaliate?
The reporting, threat of reporting, or refusal to participate in the following activities would create a protected whistleblower status for an employee:
- OSHA violations
- Hazardous substances
- Unlawful discrimination or harassment
- Improper health care facility care, service, or conditions
- Wage and hour violations
How do I file a whistleblower or retaliation claim in California?
Whistleblower cases are complex and it would be in your best interest to contact an attorney. The deadline to sue on a retaliation claim is generally within two years of the wrongful act but the whistleblowing claim may be only one of your potential claims, all of which may have different filing deadlines.
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