A whistleblower is an employee who reports an employer’s violation(s) of the law and/or conduct that may cause damage to the public. It is the public policy of California to encourage employees to notify proper government or law enforcement agencies when employers are violating state or federal laws and regulations. There are numerous state and federal whistleblower protection laws that exist to protect both public and private employees that report such violations.
Under California Labor Code Section 1102.5, an employer cannot make, adopt, or enforce any rule, regulation, or policy preventing an employee from being a whistleblower. An employer cannot also retaliate against a whistleblower and/or an employee who refuses to participate in an activity that would is in a violation of state and federal laws. Furthermore, an employer cannot retaliate against an employee for having exercised his or her rights as a whistleblower in his or her former employments. Under California Labor Code Section 98.6, an employer that retaliates against a whistleblower may be required to reinstate the employee’s work and employment benefits, pay lost wages, and make necessary changes to be in compliance with the law.
Federal employees that work for the government are protected under the Whistleblower Protection Act of 1989 and Whistleblower Protection Enhancement Act of 2012. These acts were established to ensure that federal employees are not afraid of retaliation from the government for reporting violations. The types of wrongdoings that are covered includes violation of any law, rules, or regulation, mismanagement, a gross waste of funds, an abuse of authority, and a substantial and specific danger to public health or safety.
Although whistleblower and retaliation claims are generally discussed interchangeably, there is a difference between them. As mentioned, a whistleblower claim involves a violation that causes damage to the public, like unlawful damage to the environment or corporate fraud. Conversely, a retaliation claim will involve issues that affect workers individually, such as the right to be free from discrimination, the right to be paid minimum and overtime wages, and the right to join a union.In order to prevail on a whistleblower claim, the law requires the victim prove:
- That he/she was engaged in a protected activity
- That the employer knew or believed you took such protected activity
- That you suffered an adverse employment action
- That your protected activity caused the employer to take adverse action
Typically, to be entitled to whistleblower protection, an employee must report the employer’s illegal act to government or law enforcement agencies. The employee may do this themselves or contact an attorney that specializes in whistleblower claims to help them.
There are instances when an employee is not protected from being fired. If an employee steps over the bounds of defensible conduct, an employee can lose the protections of the law. Also, a whistleblower is not protected from retaliation if a reasonable person, in the same position and with the same training and experience, would not have believed there was a violation to report.