1. What legal protection does California provide private sector employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
California recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates fundamental principles of public policy. An employee has a cause of action-in other words, the employee may sue-for wrongful discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, California courts will look to statutes, constitutional provisions, and agency regulations (at both the state and federal level) to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a California statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening California’s public policy. In both situations, employees are protected from retaliatory discharge.
The public policy must serve the interests of the public (i.e. protect the public from harm) rather than merely that of the individual (or company). Accordingly, an employee who reveals to his current employer that a co-worker is under investigation for embezzlement at another company is said to be serving only a private interest-the interest of the employer-and, although the employee’s disclosure may be beneficial to most employers, the employee is not protected from retaliation.
In addition, the California State Legislature has adopted statutory protections for employees. Notably, California has a general whistleblower protection statute that protects employees who disclose illegal activity or refuse to participate in illegal activities. Whistleblowers are thus protected under both this statute and the common law public policy exception. Also, several other California statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination, hazardous substances, occupational safety and health, and workers’ compensation. Also, California protects employees who file a complaint relating to employee rights with Labor Commissioner.
Other ProtectionsIn addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that contravenes a fundamental public policy. Under the public policy exception, there are four general categories of activities that are protected:
- Refusing to violate a statute
- Performing a statutory obligation
- Exercising a constitutional right or privilege
- Reporting a statutory violation for the public benefit
Specifically, California employees have been protected from retaliatory discharge in the following examples for:
- Discussing wages
- Refusing to sign certain non-compete agreements
- Advocating medically appropriate health care for patients
- Exercising family and medical leave rights under the Family Rights Act
- Reporting overtime wage law violations
- Disclosing anti-trust violations
Whistleblowers who report illegal activities internally to supervisors, rather than to law enforcement may be protected, although there is disagreement in California courts as to this rule. Under the whistleblower statute (see below), an employee must report the violation to a government or law enforcement agency to be protected.
General Whistleblower Protection: An employee may not be retaliated against for the following protected activities:
- Disclosing suspected violations of state or federal law to a government agency or law enforcement agency. The employee needs only to have reasonable cause to believe that a violation occurred and does not need to prove that the employer was violating the law. Even if it turns out that the employer was not violating the law, the employee will still be protected if the employee’s suspicion was reasonable.
- Refusing to participate in an activity that would violate state or federal law.
- Disclosing suspected violations of state or federal law to a person with authority over the employee or to a person with the authority to investigate, discover or correct the violation.
Also, an employer may not adopt a policy that prevents an employee from disclosing suspected violations of state or federal law to a government agency, a law enforcement agency, or a person with authority over the employee, or authority to investigate, discover, or correct the violation.
Whistleblower protection extends to future employment as well, as employees may not be retaliated against by future employers for performing the protected activities listed above in an earlier employment situation. Cal. Lab. Code § 1102.5.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing a practice made illegal under California’s Fair Employment and Housing Act (FEHA). Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying, or assisting in a proceeding under FEHA. FEHA prohibits, among other things, discrimination in employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. Cal. Gov. Code § 12940.
Hazardous Substances: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right under California’s Hazardous Substances Information and Training Act. Cal. Lab. Code § 6399.7.
Health Care Facilities: A health care employee may not be discriminated against in retaliation for filing a grievance/complaint, or initiating a government investigation or proceeding relating to the health care facility’s care, service, or conditions. Separate statutes exist for long-term health care facilities and all other health care facilities, although the protections are substantially similar. Cal. Health & Safety Code §§ 1278.5, 1432.
Miscellaneous Conduct: An employee may not be discharged (or discriminated against) in retaliation for engaging in certain conduct ⚖ specified in certain portions of the California Labor Code, among them:
- Engaging in lawful conduct occurring during nonworking hours away from the employer’s premises ⚖
- Engaging in political activity ⚖
- Filing a bona fide complaint relating to an employee’s rights that are under jurisdiction of Labor Commissioner (including wages) ⚖
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for the following protected activities:
- Making a complaint (either in writing or orally) to either (1) the California Division of Occupational Safety and Health (DOSH); (2) any other governmental agency responsible for workplace safety or health; (3) the employer; or (4) the employee’s representative.
- Instituting a proceeding, testifying in a proceeding, or exercising a right (either personally or on the behalf of another) under occupational safety and health laws
- Participating in an occupational health and safety committee
Also, an employee may not be discharged for refusing to perform work under conditions where an employer’s violation of health and safety laws would create a real and apparent hazard to employees. Cal. Lab. Code §§ 6310, 6311.
Workers’ Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing a workers’ compensation claim. An employer who retaliates in this manner is guilty of a misdemeanor. An employee is entitled to receive a 50% increase in workers’ compensation benefits (capped at $10,000). Similarly, an employee who testifies in a co-worker’s workers’ compensation hearing is also protected from retaliatory discharge. Cal. Lab. Code § 132a.
3. How do I file a whistleblower or retaliation claim in California?
Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 2 years of the retaliatory action, unless otherwise specified by statute. ⚖ If you believe you have a claim, you should contact a lawyer. ⚖
General Whistleblower Protection: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 2 years of the retaliatory action. If you believe you have a claim, you should contact a lawyer.
Discrimination: An employee may file a complaint with the California Department of Fair Employment and Housing (DFEH). The complaint must be filed within 1 year of the retaliatory action, but the time limitation may be extended in appropriate situations. ⚖ If you believe you have a claim, you should contact DFEH immediately at 1-800-884-1684 (toll-free).
Occupational Safety and Health: An employee may file a complaint with California Division of Labor Standards Enforcement (DLSE). The complaint must be filed within 6 months of the retaliatory action, although that period may be extended for good cause. ⚖ If you believe you have a claim, you should DLSE immediately. DLSE has made their forms available on their web site in a variety of languages.
Workers’ Compensation: An employee may file a complaint with the California Division of Workers’ Compensation (DWC). The complaint must be filed within 1 year of the retaliatory action. If you believe you have a claim, you should contact the DWC immediately.