Whistleblowers play an important role in society, helping to protect everything from the integrity of our financial system to the safety of our workplaces and the quality of our healthcare. But, wrongdoers have a powerful incentive to discourage whistleblowers, and are often in a position to do them harm. So, it’s no surprise that both the U.S. Congress and the California legislature have enacted laws that protect whistleblowers from retaliation.
The protections available vary depending on the industry in question and other factors, so it’s a good idea for someone considering whistleblowing activity to educate himself or herself in advance. The information in this post is a good starting point, but there’s no substitute for the advice of an experienced California employment lawyer.
What is a Whistleblower?
In general terms, a whistleblower is an insider who reports unethical, illegal, or dangerous activity on the part of an employer. Some of the highest profile and best known whistleblower cases involve government employees, including Edward Snowden and the currently anonymous whistleblower who reported on Donald Trump’s conversation with the president of Ukraine. But, whistleblowing happens across a wide range of industries.
Whistleblowers have turned a spotlight on the unscrupulous behavior of banks and mortgage services that led to the nationwide foreclosure crisis, revealed massive Medicare and insurance fraud in healthcare facilities, and exposed potentially dangerous off-label marketing by pharmaceutical companies–just to name a few examples.
Whistleblower Protections in the Law
There are two types of statutes that protect whistleblowers: broader statutes that include a protection for whistleblowers who report violations of the statute, and statutes specifically enacted to protect a larger class of whistleblowers.
Some of the most significant state and federal whistleblower protections include:
- §1102.5 of the California Labor Code, which broadly prohibits retaliation against an employee who has reasonable cause to believe that he or she has information regarding violation of state or federal law or non-compliance with a local, state, or federal regulation and:
- Disclosed or is believed to have disclosed that information to certain government agencies
- Disclosed or is believed to have disclosed that information to those with authority over the employee or authority to investigate, discover, or correct the employer’s violation or non-compliance
- Provided information to or testified before any public body conducting an investigation, hearing or inquiry
This provision is the broadest and most significant whistleblower protection for California employees.
- The federal Whistleblower Protection Act, which prohibits anyone with authority over personnel actions from retaliating against employees and applicants of the federal government or its contractors who:
- Disclose information they reasonably believe evidences a violation of any law, rule or regulation, or
- Disclose information they reasonably believe evidences gross mismanagement, waste, abuse of authority or substantial and specific danger to public health or safety
However, this protection does not apply if disclosure is prohibited by law or by Executive Order in the interest of national defense or the conduct of foreign affairs.
- The California Whistleblower Protection Act, which provides a civil cause of action against anyone who threatens or retaliates against a state employee for making a protected disclosure.
- The federal Sarbanes-Oxley Act, which establishes extensive financial regulations and auditing requirements for publicly traded companies. Under the Act, employers whose securities must be registered under federal securities law are prohibited from firing or otherwise retaliating or discriminating against an employee who reports conduct he or she reasonably believes violates federal securities, mail fraud, wire fraud or bank fraud laws. Employees who assist in an SEC investigation are also protected.
- The federal Energy Reorganization Act of 1974split regulation of development and safety of nuclear technology, creating the Nuclear Regulatory Commission. A later amendment provided protection for employees who notify the employer of violations of the Atomic Energy Act of 1954, initiate enforcement proceedings, or testify in a safety or enforcement proceeding.
- The California Labor Code contains provisions protecting employees from retaliation for making employee health and safety complaints to the employer or a government agency, testifying in safety or health related proceedings, or refusing to work in an unsafe or unhealthy environment that creates a real or apparent hazard to the employee or co-workers.
- The California Health and Safety Code says healthcare facilities cannot discriminate against employees who submit a grievance or complaint to an accrediting agency or other governmental entity, or who cooperate in an investigation or proceeding, relating to the quality of care, services, and conditions at the facility.
This is only a partial list of statutes protecting California whistleblowers. California law also includes some very narrow statutes, such as a whistleblower protection statute for legislative employees and a separate law protecting whistleblowers in the California National Guard. The specific protections and remedies differ from statute to statute. A California employment attorney with whistleblower experience is the best source of information about the protections available in your situation and possible remedies if an employer retaliates.
What Does “Retaliation” Mean?
Some statutes include more specific descriptions of prohibited behavior. Generally, though, whistleblower protection statutes prohibit employers from terminating or demoting a whistleblower in retaliation, discriminating against the employee in decisions such as job assignments and promotions, harassing the employee or creating a work environment so unpleasant as to amount to constructive discharge. Since most statutes protecting whistleblowers employ broad terms such as “retaliation” and “discrimination,” many actions that are not specifically listed may constitute prohibited behavior.
Remedies for Victims of Whistleblower Retaliation
While the specific remedies available vary somewhat from statute to statute, and even from situation to situation, most whistleblower protection statutes allow for reinstatement and backpay, with a provision for attorney fees and other costs of litigation.
Some also allow for special damages, twice the amount of backpay due, interest on backpay, benefits, or even contain a general provision allowing for any relief necessary to make the employee whole. Though far less common, some statutes allow for civil penalties, which may be payable in whole or part to the injured employee. And, in particularly egregious cases, some whistleblower protection statutes allow for punitive damages.
Whitehead Employment Law Fights for Whistleblower Rights
As a premier employment law firm wholly dedicated to the representation of California workers, we understand the important role whistleblowers play in promoting worker safety and other important concerns. If you’re facing retaliation for reporting illegal or dangerous practices at work, fill out our confidential case evaluation form or call our office at (949) 936-4001 to learn more about how we can help.
Your consultation with our employment law attorneys in Irvine, CA is always free. We serve employees from every county in California. We have settled and tried cases winning millions of dollars in awards for clients whose employers have violated California labor laws.
We take our cases on a contingency basis, which means we don’t get paid unless we win the case for you. We also front all the court costs and fees, and get paid our share out of the court verdict or settlement with the employer if we win the case, so you don’t pay anything out of pocket.
Contact Whitehead Employment Law today at 949-936-4001. Consultations are free and confidential.
DISCLAIMER: This article does not provide legal advice and does not establish an attorney-client relationship. If you need legal advice, please contact an attorney directly.