California Labor Code section 1102.5 prohibits retaliation against an employee because he or she discloses information to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of state or federal law, a public policy, Company procedure or other standard. Notwithstanding this general prohibition, the statute does not ban actions against employees who violate the confidentiality of (1) the lawyer-client privilege, (2) the physician-patient privilege, or (3) trade secret information.
Miller Wilmers APC, a Los Angeles based Law Firm, Notes on Whistleblower Retaliation
At Miller Wilmers APC, we have seen a recent uprise in whistleblower retaliation cases in California. In plain terms, Whistleblowing occurs when an employee brings to the attention of the Company a law, policy, or standard that the Company is not upholding. In the Medical field, we found multiple whistleblowing occurrences where nurses and other medical professionals informed the Company of their failure to abide by certain safety and hygiene standards. For example, a failure to provide PPE to all of its employees; a failure to clean or sanitize hospital beds between patients and more. In the academic field, we have found a failure to accommodate students with learning disabilities and teachers having informed the school of the same and many other examples across all fields.
Common Whistleblowing Acts
Most often, whistleblowing is found where employees are reporting some form of corporate corruption which can envelope a broad range of illegal conduct. Bribery, fraud, embezzlement, kickbacks, excess distributions, using Company cards and resources for items and activities that are not covered by the Company and even Company theft. Racial Discrimination, Sexual Harassment and religious discrimination can be included within the definition of whistleblowing when it is brought to the attention of the Company even if the person reporting the issue is not directly a victim of the alleged misconduct.
So, What Constitutes Retaliation?
Many employers attempt to undermine or even remove complaining employees to punish them for their reports which may make them, or a specific manager look incompetent. These actions can range from subtle harassment to outright persecution. Retaliation will likely come in the following forms:
- Reduction in Pay
- Reduction in Hours or Reduced Scheduling
- Transfer to Another Department, Location, or Position
- Termination of Employment
Any adverse employment action on behalf of the employer that negatively effects an employee's current or future employment status or work environment can be considered workplace retaliation. Because of the fear for bringing up complaints, or to follow through with a complaint after being shut down, employees often remain silent, at the detriment of the overall Company health.
Adverse Employment Action
In order to bring a claim for whistleblower retaliation, a Plaintiff must establish that he or she was subjected to an "adverse employment action." Not every employment decision amounts to an adverse employment action. In order to meet this standard, an employee's adverse treatment must "materially affect the terms, conditions, or privileges of employment." No adverse employment action will be found where an employee is not demoted, put into a worse job or given additional responsibilities, or where a temporary transfer does not result in a loss of salary or benefits. Of course, a termination or suspension will certainly qualify.
A Plaintiff must show a causal link between his or her protected activity and the adverse action to prevail in a retaliatory action. If the adverse action is not caused by the protected activity, it is not the product of unlawful retaliation. To start with the most important hurdle; if the employer is not aware of the activity when the employment action is planned, no causal link exists. We have found this is often the employer's first line of defense, to state that they had never known of this complaint, didn't know about the misconduct or that this individual never made a complaint regarding the same. It is for this reason that it is important that employees make their complaints to their manager or HR in writing. An email or text message will constitute such a writing.
Courts will also examine the mere temporal proximity between an employer's knowledge of protected activity and any adverse employment action that it takes. This means the time between the complaint and the adverse employment action. The more immediate the Company's response to the complaint the more apparent retaliation is. The more time that has passed between the complaint and the adverse employment action, the less likely the Court will find that the two are causally related. However, a continuing harassing conduct since the adverse employment action will still be shown as an immediate and ongoing response to the complaint.
Contact An Employment Attorney If You Believe You Have Been Subjected to Retaliation for "Whistleblowing"
The employment attorneys at Miller Wilmers APC have extensive experience in handling claims involving whistleblower retaliation. If you believe you have been subjected to whistleblower retaliation, contact our office at (661) 312-8370 for a free consultation.
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