Under Labor Code Section 1102.5, California law also bars employer retaliation against employees for “whistleblowing” (reporting violations of state or federal law either to governmental agencies or directly to employer) or for refusing to violate federal or state law. Whistleblower cases are easier to prove, since the employee only needs to show that his or her complaint was a “contributing factor” to adverse action against the employee. Once the employee met his or her burden, the employer must “demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in” the protected activities.
These claims are very valuable. In addition to lost past and future wages, emotional distress and punitive damages, a civil penalty of up to $10,000 for each violation may be imposed against an employer.
Whistleblower cases are particularly widespread in highly regulated professions: law enforcement, drug manufacturing and sales, medical devices, financial industry, consumer products and healthcare. Examples include a report by nurse that the hospital is not providing necessary care to its patients or a report by a medical device salesman to upper management that the company is receiving illegal kickbacks from doctors. Employees do not need to know or report the exact law that is being violated.
In some cases, such whistleblower conduct may also be protected under Sarbanes-Oxley Act (“SOX”). However, employee only has 180 days to file his or her complaint with the U.S. Department of Labor to preserve the SOX retaliation claim. Only experienced lawyers could identify and preserve such valuable claims. And more good news for the employees: these claims are not subject to arbitration. In 2019-2020 alone, WJA obtained several million dollars in SOX retaliation cases.
If you suspect that you have been subject to retaliation or termination for “whistleblowing,” contact a whistleblower attorney at Workplace Justice Advocates, to discuss your rights and options.