Whistleblower Protection in California – A Guide to The Law

California whistleblower protection laws prohibit employers from retaliating against you for coming forward to report suspected violations of laws, regulations or public policy. Even if you turn out to be wrong, you still cannot be retaliated against as long as you reasonably believed your reports.

For example, California laws against whistleblower retaliation would protect you for reporting:

• suspected criminal activity by your employer to a government or law enforcement agency;
• a suspected violation of a law or regulation to a supervisor or other person at your employer who has the authority to investigate the violation;¹
• wage/hour law violations or other labor board complaints to the Labor Commissioner;² or
• economically wasteful, incompetent or inefficient activity to the California State Auditor (if you are a public employee).³

Whistleblower retaliation can be as extreme as wrongful termination – that is, the loss of your job – or wrongful constructive termination, in which your employer makes working conditions so intolerable that you have no choice but to resign.

Though retaliation against you for whistleblowing can also be more subtle and can include:

• Demotion;
• An unfair write-up;
• Failure to promote to a higher position when warranted by merit;
• Threats to turn you in to ICE if you make a labor complaint;
• Denial of access to training or professional development opportunities; or
• Denial of access to resources necessary for you to do your job properly.⁴

California employers may not retaliate against whistleblowing employees.

Below, our California labor and employment lawyers answer the following frequently asked questions:

• 1. What laws protect me from whistleblower retaliation in California?
  • 1.1. Labor Code 1102.5 LC – general whistleblower protection
  • 1.2. Labor Code 98.6 LC – wage/hour and other labor violation
  • 1.3. Labor Code 6310 LC – occupational health and safety reports
  • 1.4. Government Code 8547 GC et seq – public employees
  • 1.5. Whistleblower protection and related laws (qui tam, FEHA retaliation, Sarbanes-Oxley, Dodd-Frank)
  • 1.6. Health & Safety Code 1278.5 – whistleblower protection for healthcare workers and patients
  • 1.7. Education Code Code 44110 – Reporting by School Employees of Improper Governmental Activities Act
• 2. What is the difference between whistleblower retaliation and public policy wrongful termination?
• 3. What are my options if I am a victim of whistleblower retaliation?
• 4. What is the deadline to file a complaint or lawsuit?
• 5. What damages can I win in a lawsuit?
• 6. Additional resources

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. What laws protect me from whistleblower retaliation in California?

1.1. Labor Code 1102.5 LC – general whistleblower protection

Labor Code 1102.5 LC is California’s most general law prohibiting whistleblower retaliation. LC 1102.5 prevents your employer from retaliating against you for

• disclosing what you reasonably believe is a violation of or noncompliance with a law or regulation to
  • a government or law enforcement agency,
  • a person with authority over the employee, or
  • another employee with the authority to investigate or correct the violation; OR
• providing information or testifying before any public body conducting an investigation, hearing or inquiry about what you reasonably believe is a violation of or noncompliance with a law or regulation.⁵

Additional whistleblower protections

You are protected from retaliation by Labor Code 1102.5 even if it turns out that:

• Your employer did not violate the law but you reasonably believed they did;
• You reported suspected violations to your employer or a government agency that they already knew about;⁶ or
• Your employer mistakenly believed you had reported a violation or were about to report a violation.

In addition, the law prevents employers from retaliating against you for whistleblower activities:

• you engaged in while working at a previous employer, or
• your family engaged in.

Should the case go to trial

Should a Labor Code 1102.5 case go to trial, you have the initial burden to show by a preponderance of the evidence that your whistleblowing was a contributing factor in your employer’s adverse actions. Then your employer has to show by clear and convincing evidence that their adverse actions would have occurred even if you had not engaged in whistleblowing: If they fail to meet this burden of proof, they can be held liable for retaliation.⁷

Special protections for mental health advocates

If you are a patients’ rights advocate in a county mental health facility, you must be allowed to provide information or to testify as long as you reasonably believe your information shows that a law has been violated. Plus your employer may not discriminate against you for whistleblowing.⁸

1.2. Labor Code 98.6 LC – wage/hour and other labor violation reports

California Labor Code 98.6 LC is a whistleblower protection statute that protects you for reporting Labor Code violations to the California Labor Commissioner.⁹ The law also forbids whistleblower retaliation against:

• job applicants who filed complaints with the Labor Commissioner about their previous employers, and
• family members of people who filed complaints about labor violations.¹⁰

Labor Code 1197.5 also prohibits employer retaliation against you for reporting – or taking legal action to correct – sex-based wage discrimination.

State public employees are protected under the California Whistleblower Protection Act.

1.3. Labor Code 6310 LC – occupational health and safety reports

Labor Code 6310 LC prohibits whistleblower retaliation against you for reporting violations of occupational health and safety rules to the California Division of Occupational Safety and Health (Cal/OSHA).¹¹

LC 6310 also prohibits employer discrimination or retaliation against your family members for reporting worker health and safety violations.¹²

1.4. Government Code 8547 GC et seq — whistleblower protection for public employees

The California Whistleblower Protection Act protects state employees who report any of the following:

1. Violations of law, regulations, executive orders or court orders (including corruption, bribery or fraud);
2. Any condition that may significantly threaten the health or safety of employees or the public; or
3. Governmental activity that is economically wasteful or involves gross misconduct, incompetency or inefficiency.¹³

1.5. Whistleblower protection and related laws (qui tam, FEHA retaliation, Sarbanes-Oxley, Dodd-Frank)

Qui tam whistleblower retaliation

The “qui tam” section of the California False Claims Act allows you to sue your employer on behalf of the state government – and recover treble damages – if your employer committed

• fraud (such as fraudulent billing) or
• embezzlement with respect to government funds.

If your employer then retaliates against you for bringing a qui tam suit, you have the right to sue for qui tam whistleblower retaliation.¹⁴

Note that these cases must be initially filed under seal so that the government can investigate. Then if they decline to intervene, you can bring the case by yourself.

FEHA whistleblower retaliation

The Fair Employment and Housing Act – California’s main law prohibiting workplace harassment and employment discrimination – prohibits employers from retaliating against you for opposing or reporting FEHA violations. Wrongful termination or retaliation under the FEHA can be the basis of a lawsuit similar to those under other whistleblower protection laws.

Sarbanes-Oxley whistleblower laws

The whistleblower protections of the federal Sarbanes-Oxley Act of 2002 was designed to protect investors from fraudulent accounting by public companies. If you are the employee of a publicly-traded company, you have the right to sue for whistleblower retaliation if your employer retaliates against you for reporting suspected securities fraud to the federal government or a supervisor.¹⁵

Dodd-Frank Wall Street Reform and Consumer Protection Act

Dodd-Frank implemented protections for whistleblowers who revealed inappropriate actions taken by public corporations. You can demand a jury trial if you believe you were terminated in retaliation to your whistleblowing.¹⁶

1.6. Health & Safety Code 1278.5 – whistleblower protection for healthcare workers and patients

Health & Safety Code 1278.5 levies both criminal and civil fines against health care facility administrators/staff for retaliating against

• patients,
• nurses,
• members of the medical staff, and
• other health care workers

who notify government entities of suspected unsafe patient care and conditions.

If you are a health care worker reporting on patient safety issues, you may not need to exhaust all internal grievance processes before suing under the Health and Safety Code 1278.5. This is because the internal hospital appeal processes could potentially delay or hinder your retaliation claims.¹⁷

1.7. Education Code Code 44110 – Reporting by School Employees of Improper Governmental Activities Act

Education Codes 44110 – 44115 levy both criminal and civil penalties against public school administrators for retaliating against you for disclosing improper government activities.¹⁸

2. What is the difference between whistleblower retaliation and public policy wrongful termination?

Under California public policy wrongful discharge law, employers may not fire you for:

1. Refusing to violate a law,
2. Performing a legal obligation,
3. Exercising a legal right or privilege, or
4. Reporting an alleged violation of a law of public importance.¹⁹

Unlike whistleblower wrongful termination, public policy wrongful termination only applies when you lose your job, not merely for being discriminated against at work.

Employees who have been retaliated against for whistleblowing can file a lawsuit.

3. What are my options if I am a victim of whistleblower retaliation?

Labor Code 1102.5

Before you may sue your employer for violating the whistleblower protections of Labor Code 1102.5 LC, you must first notify the California Labor and Workplace Development Agency through an online form and your employer via certified mail.²⁰

After you file this notice, the Labor and Workplace Development Agency may decide to investigate your complaint itself. If it chooses not to do so, it must notify you within sixty-five (65) days–at which point you may file your own lawsuit.²¹

Labor Code 98.6 and 6310

If your employer retaliates against you for reporting labor or occupational health/safety law violations, then you may file a complaint with the California Labor Commissioner. Though you are not required to do so: You may skip this step and go directly to a lawsuit.²²

Note there is a rebuttable presumption of retaliation if you get disciplined/discharged within 90 days of engaging in protected activity protected by 98.6 LC. If the employer then articulates a legitimate reason for their actions, you have to show that the adverse action was nonetheless retaliatory.²³

State government employee whistleblowers

If you are a victim of whistleblower retaliation under the California Whistleblower Protection Act that applies to state government employees, you must file a complaint with the California State Personnel Board before you may file a lawsuit against the state agency that employed you.²⁴

4. What is the deadline to file a complaint or lawsuit?

As with most California civil lawsuits, employee lawsuits (or administrative complaints) against employers under California whistleblower protection laws are subject to a “statute of limitations” – a time limit within which you have to file a complaint or suit after the retaliation occurs:

5. What damages can I win in a lawsuit?

Labor Code 1102.5 lawsuits

In a lawsuit for damages under LC 1102.5 (California’s most general whistleblower protection law), a Superior Court might award you:

1. A civil penalty of up to $10,000 paid from the employer to you,
2. Lost wages and benefits,
3. Damages for emotional distress/pain and suffering, and
4. Punitive damages.²⁹

Labor Code 98.6 and 6310

For claims of whistleblower retaliation for reporting violations of wage/hour laws or of occupational health and safety laws, the Labor Commissioner may order your employer to

• Rehire or reinstate you,
• Reimburse you for lost wages with interest, and
• Reimburse you for reasonable attorney’s fees.³⁰

LC 98.6 violations can also be punished by a civil penalty of up to $10,000 paid by the employer to you.

Public employee whistleblower protection

If the State Personnel Board determines that you were the victim of whistleblower retaliation, it may order the following remedies:

• Reinstatement,
• Back pay,
• Restoration of lost service credit,
• Compensatory damages, and
• Expungement of any adverse employment record that resulted from the retaliation.³¹

6. Additional resources

For more information, refer to the following:

1. What is a whistleblower? – Overview by the National Whistleblower Center.
2. Whistleblower Protection Program – Government program offering protections for employees who were retaliated against for protected activities under more than 20 federal laws.
3. Whistleblower Survival Tips – Advice from an independent, nonpartisan support office which advises the House of Representatives.
4. California’s Hazardous Substances Information and Training Act – Under LC § 6399.7, you cannot be retaliated against for reporting hazardous substances in the workplace.
5. Workers’ Compensation anti-retaliation law – Under LC § 132a, you cannot be retaliated against for filing a workers’ comp claim or for testifying in a workers’ comp hearing for a co-worker.

Legal References: