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Retaliation for whistle blowing

California Labor Code 1102.5 remains one of — if not the–most important tools we as plaintiff attorneys have to protect California employees from retaliation for reporting illegal, unsafe or “bad” practices either to their company or to law enforcement. A major “fork in the road” for whistle blowers is understanding the difference in the two main components of LC 1102.5. Under part (b), protection is available to whistle blowers only if the disclosure revealed suspected violations under state or federal laws. ¬†Until January 1 2014, local statutes or city charger violations doe not qualify. Edgerly vs. City of Oakland, 211 Cal 4th 1191 (2012). Now, Governor Brown has signed into law revisions which allow wbistle blowers to seek recovery under any local rule, ordinance or regulation. San Francisco has many such ordinances, such as the Living Wage Ordinance ($10;hr minimum wage0l Under (b) an employees who reports suspicions only to their employer does not qualify as a whistle blower unless the employer is a public entity.

Now, let’s compare reporting to a governmental agency with (c), which prohibits retaliation against an employee who refuses to participate in an illegal activity, or takes a position adverse to the employer’s position. As stated in Ferretti vs. Pfizer, Inc. 855 F. Supp 2d 1017, 1025 (2012). “the…Legislature intended to protect employees who refuse to act at the direction of their employer or refuse to participate in activities of an employer that would result in a violation of law.” (Feretti involved a request to transfer out of a research grant which violated federal regulations. court construed this as refusal to participate in an illegal course of conduct).

Under (c), a whistle blowers has a higher burden of proof than under (b), in that they must show that an employer’s conduct as in fact illegal, not merely that they had a reasonable belief that it was illegal. Further, the employee must show that they somehow opposed the employer’s illegal activity, such as by refusing to participate in it.

In many cases, our potential clients actually have, as part of their job duties, the responsibility of reporting illegal activity. Does that make them qualified as whistle blowers if they are just “doing their job”? Answer: yes, they are entitled to recover if they have “stepped outside” of their job when they informed the authorities or took adverse action. McVeigh vs. Recology San Francisco, 213 Cal. App 4th 443, 467 (2013). Thus, something that is beyond “just doing my job and warning an employer of possible legal consequences” must be undertaken. (but recall that this type of across-the-box=early warning might well be enough to state a (b) claim.

There is a requirement (at least stated by one court) that an administrative claim first be filed with the Department of Labor Standards Enforcement prior to filing a civil suit for LC 1102.5 violations. This will no longer be required after 1/1/14 due to Governor Edmund Brown’ signing SB 666; however, until that time it is probably best to file a claim. Unfortunately, the time limit to file the claim is six months (Cal Labor Code 98.7(a). Be sure to file with the DLSE; a claim for violation of California Private Attorney General ¬†Act (PAGA, LC 2699(g)) requires a claim filed with a different agency, the Labor and Workforce Development Agency.

Los Angeles County employment attorney Stephen Danz and his team of associates have filed numerous lawsuits against California employers alleging violations of these laws on behalf of employees who have been terminated for complaining about illegalities. Legal advise in your case can only be given by an attorney licensed in your jurisdiction and familiar with the facts of your case.