A whistleblower is an individual who exposes the unethical, illegal, and/or fraudulent behavior engaged in by a public or private organization. Although a whistleblower can be an individual inside or outside of an organization, the majority of whistleblower laws protect the rights of internal whistleblowers, usually employees.
Whistleblowing occurs when an employee blows the whistle on an employer’s illegal and/or unethical behavior and/or activities. A whistleblower blows the whistle by reporting the employer to the appropriate authorities and/or commissions, usually a law enforcement agency.
It is unlawful to fire a whistleblower for their actions. They are protected under specific whistleblowing laws. An employer is prohibited from retaliating against the whistleblowing employee in ways such as firing them and/or denying them benefits.
Some common examples of instances where whistleblowing occurs include:
- An employer violates public health laws, which leads to illness and/or death;
- An employer violates workplace safety laws;
- An employer violates hiring and/or firing laws;
- An employer is practicing discrimination against a protected class and/or activity;
- Mismanagement of funds by an employer; or
- Abuse of authority by an employer.
Even though whistleblowers are protected by whistleblower laws, they may be fired from their job for reasons other than their whistleblowing actions. An example of this is where the whistleblower also has a history of being late and/or absent from work. In such cases, an employer may legally terminate a whistleblower from their employment without violating any laws.
As previously noted, federal laws protect employees who blow the whistle on an employer for breaking the law. A whistleblowing employee who is a witness to the questionable behavior is provided immunity against retaliation and/or termination after reporting an employer to law enforcement.
Therefore, if an employee is terminated solely because of their whistleblowing, and there was no other valid reason for termination, they may be able to sue the employer for wrongful termination.
This employee protection also applies in cases where the actions reported by the employee were not actually illegal but the employee reasonably believed that they were. The employee is protected against employer retaliation just as though the employer’s actions were illegal.
What Rights Do Whistleblowers Have Under California Laws?
There are federal as well as state whistleblower laws. In California, whistleblowers are protected under the California Whistleblower Protection Act, Labor Code Section 1102.5 to 1105. This act is modeled after the federal Occupational Health And Safety Act (OSHA) regulations.
The California Whistleblower Protection Act prohibits retaliation by an employer or a third party against an employee that reports a violation of state and/or federal law to a government official and/or law enforcement officer. This act applies to both private and public sector employees.
What are False Claims Act Whistleblower Employee Protections?
The False Claims Act (FCA) protects an employee who has assisted in an investigation of a claim against a federal agency. The government is permitted to conduct an investigation and file a lawsuit against an employer if the claims are found to be falsified. The employees who assisted in the investigation are protected against retaliatory termination.
If an employee was terminated, they must prove retaliatory termination by the following elements:
- The actions of the employee were, in fact, protected under the False Claims Act;
- The employer was aware that the employee was assisting a government investigation; and
- The termination of the employee was, in fact, in retaliation for the employee’s participation in protected activities.
The False Claims Act awards whistleblowers a percentage of the government’s award if the government is successful in its lawsuit against the violating employer. Initially, this damage award given to whistleblowers was created to assist in terminating fraud in Medicare and other government programs. The damage award also provided an incentive to a potential whistleblower who would possibly experience retaliation from their employer.
A whistleblower who is wrongfully terminated for reporting their employer’s violations may be entitled to the following:
- Reinstatement to their former position, potentially with seniority;
- Back pay, potentially with interest;
- Attorney’s fees and costs; and/or
- Special damages.
The amount that a whistleblower may be awarded depends on the circumstances of each case. An individual may be awarded between 10 and 30 percent of what the government collects from a successful lawsuit.
For example, if a lawsuit involves the IRS, and the penalties exceeded $2 million, a whistleblower may receive a percentage of those penalties. Additionally, the government will pay any legal fees the whistleblower incurs.
If a case is settled, the whistleblower will usually receive a smaller sum. However, a settlement also means that the whistleblower will receive compensation much quicker than waiting years for a case to go to trial.
What Else Should I Know About Whistleblowing Laws in California?
There are additional federal laws that protect whistleblowers. The Sarbanes-Oxley Act of 2002 (SOX) provides protections for whistleblowers in publicly traded reporting corporations. In addition, SOX requires a corporate employer to provide procedures that allow employees to make anonymous complaints. Under SOX, employer retaliation is a criminal offense and may be punishable by up to 10 years in prison and/or fines.
The Notification and Federal Employee Anti-Discrimination and Retaliation Act of 2002 (NO-FEAR Act) applies only to employees of federal agencies. This act sets stricter whistleblowing mandates and raises work standards for federal agencies. For example, federal agencies are required to notify all employees of their rights under whistleblowing laws.
The Whistleblower Protection Act provides protections for federal government whistleblowers. This act led to the creation of the Office of Special Counsel (OSC). The OSC investigates complaints from federal employees. The act, however, has recently been challenged in a Supreme Court case and is currently undergoing restructuring. Similarly, the Military Whistleblower Protection Act allows members of the armed forces to provide their complaint to a member of Congress.
In order for an individual to show they were mistreated and/or retaliated against for whistleblowing, they should be able to show the following:
- After reporting their employer, they were the recipient any negative employment actions;
- The reported information is indicative of a law violation;
- To whom and when the individual reported it;
- Whether or not management was aware of the whistleblowing event; and
- If the reporting of the event contributed to the personal attack.
A whistleblower claim should be reported immediately. It should be reported to an attorney and/or the appropriate government official and/or agency. If a claim becomes public knowledge, it will likely be denied and the whistleblower will not be afforded protections.
In addition, although numerous whistleblower laws exist, most do not permit an employee to immediately file a lawsuit for wrongful termination. This complaint is usually handled on an administrative level first and then filed with the EEOC or OSHA. If the issue is not resolved, an administrative judge may be appointed to oversee the complaint.
What Can I Do If I Have Experienced Whistleblower Retaliation in California?
California has a specific reporting process for employees who are seeking whistleblower protection. First, an employee must report the issue to the employer. As noted above, California law requires that public entities and private companies have internal procedural mechanisms to deal with possible legal issues. If the entity or company ignores the claim and retaliates against the whistleblowing employee, that employee may take legal action.
The employee’s next step is to file a workplace retaliation complaint with the Division of Labor Standards Enforcement (DLSE). California state investigators will review the employer’s practices. An employee typically has 6 months after the retaliatory action takes place to file a complaint.
An employee may also file a civil lawsuit against the employer for monetary damages. Typically, the claim will be a wrongful discharge lawsuit or a general whistleblower lawsuit, but an attorney will be able to determine which claims apply. An employee has 2 years to file this type of claim.
Do I Need a California Attorney for Help with Whistleblower Laws?
Yes, it is important to have the help of a California attorney for any whistleblower claims. As discussed above, there are several federal and state laws that may apply in a whistleblower case. These cases may be complex and require specialized knowledge.
In addition, it may be difficult to prove that you were wrongfully terminated because of your whistleblowing report. If you believe you were terminated in retaliation, you should seek the help of an employment law attorney as soon as possible. An attorney can review your case, determine the best course of action for your claim, and represent you during court proceedings, if necessary.