How California’s Courts Are Standing Up To Protect Workplace Whistleblowers
It looked like a classic case of employer retaliation.
A. was a bartender at Kolla’s nightclub in Orange County. In April 2014, after she hadn’t been paid for three shifts in a row, she approached the club’s owner to ask about her unpaid wages.
In response, her boss flew into a rage. He fired A. on the spot, telling her to never return to the club, and threatened to call immigration services on her.
Several months later, the California Labor Commissioner sued Kolla’s for violating the state Labor Code by stealing wages and retaliating against a whistleblower.
Although the court was on board with the wage theft charges, the retaliation claim caused some disagreement.
Could A. really be considered a “whistleblower” for simply asking her boss for missing paychecks?
In May 2023, the California Supreme Court weighed in to settle the issue — and with their decision, clarified a rule that could have a significant impact on workers across the Golden State.
In this blog post, we’ll explain what employees in California need to know about the state’s whistleblower retaliation laws. We’ll first walk through the legal protections the state offers workplace whistleblowers.
Then explain what was at issue in the recent Supreme Court case, and finally describe what to do if you’re concerned about workplace wrongdoing.
If you have questions about non-compete agreements, please contact the experienced California employment lawyers at Ottinger Employment Lawyers today.
What Laws Does California Have To Protect Employees Who Report Workplace Wrongdoing?
In California, there are specific legal protections for employees who “blow the whistle” on an employer’s illegal or dangerous behavior.
Some of the workplace misconduct that a whistleblower might report can include:
- Violation of a state or federal law,
- violation or noncompliance with a local, state, or federal rule or regulation, or
- unsafe working conditions or practices in the context of employee health and safety.
Under section 1102.5 of the state’s Labor Code, employers are prohibited from retaliating against employees who disclose information about these kinds of wrongdoing.
According to the Labor Code, it’s also illegal to punish employees for refusing to participate in an activity that would be a violation of an existing law.
For instance, if you oversee payroll and your boss tells you to calculate overtime hours at the regular rate for nonexempt employees.
The most common form of employer retaliation that whistleblowers face is simply being fired. But retaliation isn’t always that obvious or extreme.
Employers can also commit illegal retaliation against a whistleblower by:
- Demoting you.
- Withholding opportunities for promotion or advancement.
- Isolating you from other workers.
- Denying you access to tools and resources necessary to do your job.
- Sabotaging your work.
- Harassing you.
- Making threats related to your or a family member’s immigration status.
In California, employer retaliation isn’t just illegal when it happens to employees who report workplace wrongdoing.
It’s also prohibited against employees who decide to join a union, request accommodations for a pregnancy, need time off to take part in jury duty, or other judicial proceedings.
Or who find themselves in other situations that can lead to conflict with an employer.
What Happened In The People Ex Rel. Lilia Garcia-Brower V. Kolla’s Inc.?
Despite her boss’s threats, A. (who requested to be kept anonymous) filed a complaint with the California Division of Labor Standards Enforcement (DLSE) after she was fired from Kolla’s.
After an investigation, the DLSE brought charges against the nightclub for violating California’s labor laws by stealing wages and retaliating against a whistleblower. In court, there was little disagreement that Kolla’s — and A.’s boss — had engaged in wage theft.
But the retaliation claim raised some pressing legal questions. First, there was the issue of timing. A. didn’t approach state authorities to report wrongdoing until after she’d been fired — usually, an employer’s act of retaliation happens as a response to a report of wrongdoing.
However, thanks to reforms passed in 2013, California’s whistleblower protections are no longer limited to employees who make reports of wrongdoing to government agencies (e.g. the DLSE, the Labor Commissioner, or the federal Equal Employment Opportunity Commission).
According to the newly revised Labor Code 1102.5(b), employees can be considered whistleblowers — and protected from retaliation — for reports of misconduct made “to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation.”
Because she complained about the illegally withheld wages to her boss — who had the authority to correct the violation — A.’s report could still be considered a protected act under California law.
But now, another tricky question arose: Was A. really engaging in “whistleblowing” if she was reporting news of wrongdoing to someone who was already aware of it, as the nightclub owner was?
The disagreement came down to the meaning of a few specific words in the written law:
“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information […]”
In the lower courts, some argued that “disclosure” specifically referred to sharing information with someone who didn’t know about it previously.
For instance, when someone who’s being verbally abused by a coworker breaks their silence to tell HR about the harassment.
If that was the authoritative definition of “disclosure,” then A.’s report wouldn’t fit the legal requirements to be considered whistleblowing — and wouldn’t be protected under the law.
When the case reached the California Supreme Court, though, the high court agreed with the Labor Commissioner’s interpretation of the word.
Although a “disclosure” involves opening up information to general knowledge, it doesn’t require that the information be unknown to the person receiving it.
The Supreme Court pointed out that a narrower interpretation of “disclosure” risked shutting out certain employees from the law’s protections.
If multiple employees reported the same workplace safety issue to their boss, for instance, only the one who made the first report would be protected as a whistleblower.
Ultimately, the high court ruled in favor of A.’s case, brought on behalf of the Labor Commissioner.
Confirming that even employees who blow the whistle on wrongdoing that’s already known to the person they’re reporting to are legally protected from backlash from their employer.
I’m Concerned About Illegal Activity Where I Work. What Should I Do?
Learn about the procedures for reporting misconduct internally — through your company’s HR department or other means. Contact the DLSE to report wrongdoing such as wage theft or other labor code violations.
Keep a record of any communications you have about the wrongdoing and your report: save emails, keep messages, and even take notes after you have face-to-face meetings.
Understand your legal protections. You don’t have to have proof beyond a shadow of a doubt about the illegal activity to be protected by California’s whistleblower law when you report it.
According to the Labor Code, it’s enough for you to have “reasonable cause to believe” that unlawful conduct is happening to be shielded from employer retaliation if you make a report.
When to Get in Contact with an Employment Lawyer
Also, know your rights when it comes to retaliation. It’s illegal for your employer to take adverse actions against you, even because they only suspect you’re going to blow the whistle — whether you’ve actually made a report about misconduct yet.
Importantly — whether you’ve made a report or are considering it — consult with an employment lawyer. An experienced attorney can listen to your concerns and shed an expert’s light on the situation.
If your rights have been violated, they can advise you on how to get legal recourse, and even represent you in court if you’re seeking recovery for wrongful termination.
Ottinger Employment Lawyers has been helping employees get justice for workplace misconduct for over 20 years.
If you work in California, and you’re concerned about unlawful activity in your workplace, contact our team of experienced employment attorneys today to discuss your case.
Robert Ottinger, Esq.
Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.
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