Whistleblower Claims

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A whistleblower claim typically requires disclosure to a government agency, but disclosure to other sorts of people or institutions may still trigger a claim.
 

As an employee in the State of California, you have the right to speak to representatives of the office of the California Labor Commissioner or any other government or law enforcement agency about any issues affecting your working conditions. Your employer cannot fire, demote, suspend or discipline you for answering any questions or providing any information to a government agency.

California law prohibits an employer from retaliating against any employee who provides information to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation or noncompliance with a state or federal statute, rule, or regulation.  An employer cannot discharge, demote, suspend or discipline in any manner an employee who engages in this protected activity.

California Labor Code section 1102.5 states in subsections (a) to (d):

1102.5. (a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.

(d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.

Federal law - the Fair Labor Standards Act (FLSA) - also prohibits employer retaliation against an employee who files a complaint under the Act.  A recent Supreme Court decision issued March 22, 2011 held that the FLSA protects whistleblowers from retaliation even if the complaint is oral and not written.  (Click here to see our article on Kasten v. Saint Gobain Plastics Corp.)

In California, federal courts have held that an employee is not entitled to FLSA whistleblower protection under the FLSA if the employee makes a complaint to the employer rather than the Department of Labor or some other enforcement agency.  Lambert v. Ackerley, 180 F.3d 997, 1007 (CA9 1999).

 
 

Call us at 408.797.0000

Call us at 408.797.0000

Call us for a consultation at 408.797.0000. We offer expert services and proven experience with complex issues that others can overlook.

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The Olender Pro Bono Project

We represent some clients who have compelling cases and little money at no charge. Sean received the Benito Juarez human rights award in 2008 and the ALRP Volunteer Award in 2012 for taking more than 10 pro bono cases in 12 months. We need volunteers. E-mail Debbie to volunteer.

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