California Whistleblower Laws

An employee who reports their employer’s illegal activities is known as a “whistleblower.” The federal government and most states have whistleblower statutes. These laws prohibit employer retaliation against employees who report their employers’ illegal activities.

Employer retaliation is an adverse action that might discourage employees from reporting the people they work for. It can manifest in numerous ways, such as having your hours cut or being passed over for a promotion after you report illegal activity. An employee who reports an employer and then experiences whistleblower retaliation may file a claim.

California’s broad, employee-friendly whistleblower laws promote safe, fair, and lawful working conditions and public trust. By removing the fear of retaliatory action and protecting employees who report their employers for illegal activities, whistleblower laws protect the public. That’s the common public policy behind the whistleblower protections.

Oftentimes, the protections overlap. One whistleblower report may lead to several claims. For this reason, it is important to understand the various state and federal whistleblower protections.

This article focuses on the key whistleblower protections for California workers, with a general overview of the federal laws. If you think you may have a whistleblower retaliation claim against your employer, contact an attorney for legal advice.

California’s Main Whistleblower Law

California’s main whistleblower protections are found in the California Labor Code. Let’s take a look at what they are and how they function.

Who Is Protected?

The protections under the California Labor Code are broad. In general, these whistleblower protections cover current employees, former employees, and even job applicants. California’s whistleblower protections cover private-sector employees and many public-sector employees, including University of California employees.

The law does not protect elected officials or true independent contractors. It’s not uncommon for employers to misclassify workers as independent contractors. If you think your employer misclassified you, consider speaking with an employment law attorney.

Protected Activities

Protected activities include reporting, opposing, or refusing to take part in your employer’s conduct that you reasonably believe is illegal. The whistleblower doesn’t have to prove that the employer’s conduct is illegal. Holding a reasonable belief is enough.

The illegal conduct can look like violations or noncompliance with laws, rules, or regulations at the federal, state, or local level. Some examples of an employer’s illegal activity include:

• Violating health or safety codes
• Directing employees to do something illegal
• Committing wage theft or violating other California labor code provisions
• Allowing or committing discrimination or harassment
• Conducting fraudulent activity
• Violating regulations
• Failing to follow licensing requirements

The whistleblower’s report or opposition must be made in good faith. This means if you are honest and do not knowingly make a false report, you are covered by the whistleblower protections. They remain in place regardless of whether an investigation clears the employer of any wrongdoing.

A protected report can be internal (within the company) or external (to a government agency or authority). For example, if you make a report to your supervisor, the HR department, or a company hotline, you are protected. You do not have to report to an outside authority to be protected from retaliation.

Employer Retaliation

Firing the whistleblower is one example of employer retaliation, but adverse employment action can be more subtle than an outright termination. Examples of employer retaliation may look like:

• Demotion
• Threats or harassment
• A negative write-up
• Being passed over for a promotion
• Losing your top-performing clients or accounts
• Being excluded from important meetings
• Getting scheduled for fewer hours or less desirable shifts

Any adverse action that might discourage an employee from reporting their illegal activity may indicate employer retaliation. Timing can be a strong indicator of employer retaliation. For example, disciplinary action taken just after a report, or new inconsistencies in performance reviews after a report, can be a strong indicator of retaliation.

Other Contributing Factors to an Adverse Action

The employee must only show (usually by a preponderance of the evidence) that the retaliation was a “contributing factor” to the employer’s adverse action. In other words, the employee can meet the burden of proving unlawful retaliation even if other factors also contributed to the employer’s adverse action.

Once an employee shows a protected activity and employer retaliation, the burden of proof shifts to the employer. The employer must prove that it would have taken the same adverse action even if the employee had not reported it.

For example, let’s say an employer demotes an employee for being late twice in a week. However, the demotion occurs after the employee reports the employer for a violation. The employer must prove that the employee was demoted solely for being late. An employer can have multiple reasons for its adverse action, but it is still illegal if whistleblowing is a contributing factor. This requirement can encourage an employee to report unlawful activity even if they are not a “model” employee.

Other Key Whistleblower Protection Laws in California

In addition to the main whistleblower law, several other California laws include whistleblower protections. For example, the California Whistleblower Protection Act protects state employees. An employee may have a claim under more than one of these laws, depending on the circumstances. These can include:

• Reporting an employer’s unlawful act related to discrimination may be protected under both § 1102.5 and the Fair Employment and Housing Act (FEHA)
• Reporting an employer’s wage theft might be protected under the main law and the California Labor Code

Filing more than one type of claim can be strategic, providing additional legal remedies against your employer and greater leverage. If you miss a filing deadline for one type of claim, another type of claim with a longer deadline might still be an option. An employment law attorney can help you decide which course of action to take.

The table below outlines the key whistleblower protections available to California employees under state law. The main agencies involved are:

• The Civil Rights Department (CRD)
• The Division of Labor Standards Enforcement (DLSE)
• Cal/OSHA
• The State Auditor (state government employees)

As shown, some whistleblower actions can be pursued in court. It is critical to note that to pursue a FEHA claim, you must first file with the CRD and get a right-to-sue letter before filing in court. California state employees must exhaust administrative remedies under the State Auditor before filing in court. But you can file a California Labor Code claim with the CRD, in court, or both.

Federal Whistleblower Protection Laws

Like California, several federal laws include whistleblower protections. Some of the Federal Whistleblower Protection Laws include:

• Whistleblower Protection Act: Protects federal employees reporting government issues
• Sarbanes-Oxley Act (SOX): Protects corporate employees reporting financial misconduct and gross waste of funds
• Occupational Safety and Health Act (OSHA): Provides protection for certain workers reporting workplace health and safety issues

The federal filing deadlines are extremely short. Some give workers as few as 30 days to file, rather than months or years. For this reason, filing a whistleblower claim as soon as possible is essential. While one report can lead to both a federal and a California claim, you must act fast enough to keep every option open.

State and Federal Rewards for Reporting Fraud

If your employer is defrauding the state or federal government, you may be able to bring a lawsuit known as a “qui tam action.” Both the federal False Claims Act and the California False Claims Act allow a private citizen (known as the “relator”) to sue their employer for defrauding government programs and protect the relator against whistleblower retaliation. Although not limited to the healthcare sector, many of these cases involve employers in the healthcare industry defrauding government programs such as Medicare or MediCal.

If the government recovers money as a result of the lawsuit, the relator may receive a significant percentage of the funds. The public policy behind qui tam laws is to encourage employees to report fraud that the government might not otherwise detect, while protecting them from employer retaliation.

How To Report Violations

If you think your employer is breaking the law, here are some actions to consider taking. Remember, you don’t have to prove the employer’s actions are illegal. You’re just reporting what you reasonably believe is illegal.

Start by documenting the activities you see at work. Keep detailed notes that include dates, times, names of the people involved, location, and questionable activities. Save any documents that are not company confidential. The documents and notes will help you create a factual report that will be helpful to an investigation.

If you reasonably believe your employer is breaking the law, you can choose to report the violation internally or externally. Let’s take a look at each method.

Internal Reporting

An internal report is a report you make directly to your employer. Your employee handbook may include guidelines or suggested channels for this. It is common to start with your direct manager or supervisor, but if they are the source of the illegal activities, you may want to report to the HR department.

Larger companies may have an ethics or compliance hotline or a compliance or legal department that handles violation reports. In any case, be sure to keep a copy of any confirmation emails you receive and note the report number if one is assigned.

While California whistleblower protections usually cover internal reporting, making an internal report does not pause the filing deadline for a whistleblower claim. The countdown to file a whistleblower claim starts from the employer’s retaliatory act, not from when the employer finishes responding to an internal report.

External Reporting

An external report is a report you make to a government agency or law enforcement agency. In most cases, whistleblower protections do not require you to make an internal report before you can make an external report.

Where you report depends on the type of illegal activity you’re reporting. For example, California whistleblowers can report a labor law violation with the Labor Commissioner. Cal/OSHA handles reports related to workplace safety and health. California workers can contact the Attorney General Whistleblower Hotline for a referral to the appropriate government authority.

The U.S. Department of Labor (DOL) oversees five agencies that enforce whistleblower and anti-retaliation laws:

• Occupational Safety and Health Administration (OSHA)
• The Mine Safety and Health Administration (MSHA)
• Office of Federal Contract Compliance Programs (OFCCP)
• Wage and Hour Division (WHD)
• Veterans’ Employment and Training Service (VETS)

The Equal Employment Opportunity Commission (EEOC) protects workers who report workplace discrimination or harassment. The EEOC whistleblower protections cover both reporters who are the target of workplace discrimination and those who report the discrimination of others.

How To Protect Yourself When Filing a Whistleblower Report

If you’ve reported your employer for illegal activity and your employer retaliates, take action. Collect and save all documents related to your employment and the adverse action, including:

• Performance reviews
• Productivity metrics
• Thank you notes and other written positive feedback
• Pay and benefits information
• Your employee handbook

Documents showing your history with the company and how it changed after you reported it to the employer will help support your claim. Your calendar and time-stamped messages can help you establish a clear timeline of the events.

File a Retaliation Claim

It is important to file your retaliation claim or claims as soon as possible after the retaliatory action. Remember, the employer’s retaliation starts the time clock. While some California claims have a three-year deadline to file (known as the statute of limitations), the shortest potential deadline is 30 days for certain federal claims. The agencies strictly apply their individual deadlines and rarely grant exceptions.

Where to File

Filing your retaliation claim with the right agency is important. Check the table above for help figuring out which agency to file your retaliation claim with, along with other important details.

Legal Remedies

Whistleblower protections aim to make whistleblowers “whole” and punish employers who retaliate against them. Depending on the type of claim you file, the law, and the facts of your case, your employer may have to pay you money.

A successful whistleblower retaliation claim may include several different types of compensation, such as:

• Lost wages
• Reinstatement
• Emotional distress
• Punitive damages
• Reasonable attorney’s fees

The details of each whistleblower case vary.

Legal Help for California Whistleblowers

Several different laws protect whistleblowers. With various deadlines and overlapping coverage, you may want to file parallel claims if your employer retaliates against you.

For help navigating the state laws or federal laws, contact a California employment attorney. An experienced attorney can help guide you through the process of properly filing all your whistleblower claims. For more helpful information for workers and labor-related issues, visit FindLaw’s Employee Rights Center.