Retaliation & Whistleblower Actions

Whistleblowers are vital to protecting their co-workers and society and spur employers to change dangerous, harmful and unlawful practices. Whistleblower laws protect employees and other courageous individuals who raise objection and/or expose wrongdoing.

Yes, California has a number of different whistleblower protection laws. California Labor Code Section 1102.5 is the broadest California whistleblower law protecting both private and public sector employees in the State of California. Under Section 1102.5, it is unlawful for an employer to retaliate against an employee for disclosing information that the employee reasonably believes may violate a local, state, or federal law, rule, or regulation. The law protects employees even if an employer ultimately proves that its actions were not unlawful, if the employee can point to a specific statute, rule, or regulation that they reasonably believed may have been violated. Section 1102.5 also prohibits an employer from retaliating against an employee where the employer believes the employee may make a protected disclosure, even if the disclosure hasn’t happened yet. For example, a California court found that Section 1102.5 applied where a company terminated an employee, allegedly because a government agency sought to interview the employee for an agency audit, and the company believed that the employee might disclose adverse information about the company’s noncompliance with the law. Section 1102.5 further protects employees who refuse to participate in an activity that would violate a state or federal statute or local, state, or federal rule or regulation. For example, if your boss asks you to violate health and safety laws or commit fraudulent billing, and you refuse to comply with their unlawful request, you are covered by Section 1102.5.

Disclosures that are reported to government or law enforcement agencies, to an employee’s boss, or to a co- worker who has the authority to investigate or correct the violation are all protected under Section 1102.5. Employees are also protected if they are providing information to, or testifying before, any public body conducting an investigation or hearing.

Alleged violations of internal company policies, disagreements about employee reviews, write-ups or transfers that don’t otherwise involve a violation of a local, state, or federal law, rule, or regulation, are not covered. Courts have held that these types of disclosures are unprotected, routine, internal personnel disclosures.

To prove a retaliation claim under the Labor Code, a plaintiff must prove (1) that he or she engaged in protected activity, for example, the employee reported to their supervisor that the employer was engaged in unlawful acts; (2) he or she suffered an adverse employment action, for example, a demotion or termination; and (3) that a causal connection exists between the protected activity and the adverse employment action. An employee asserting a retaliation claim can rely on both circumstantial evidence (for example, by showing that she was terminated the day after she reported unsafe working conditions) or direct evidence (for example, an email from her boss stating that she would fire any “whiners” who reported her unlawful activity).

You have three years to bring your claims under Labor Code Section 1102.5.

Yes, under certain circumstances, an independent contractor may sue for retaliation. For example, many whistleblower laws protect independent contractors as well as employees. Further, the fact that a company calls you an independent contractor does not mean that you are not an employee. If you are punished for complaining about unlawful conduct, you can bring a retaliation claim. The company’s label does not matter; the Court will decide whether you are an independent contractor or employee.