Retaliatory Discharge
“Retaliation” is any detrimental action or course of action taken by an employer towards one of its employees because the employee engaged in activity protected under the law. Retaliation would certainly include termination of the employee but it also includes acts by an employer toward an employee short of discharge such as a demotion, a shift change or a reduction in pay, as examples. The major federal civil rights laws, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act and the Family and Medical Leave Act have anti-retaliation provisions built into them that protect employees who blow the whistle on potential violations of these laws.
California’s anti-employment discrimination law, which is known as the Fair Employment and Housing Act, has similar anti-retaliation provisions. Such laws make it unlawful for an employer to retaliate against an employee for making a complaint of discrimination or for giving evidence or otherwise participating in any way in a proceeding brought by the employee or by any other person who is complaining about illegal employment discrimination. An employee subjected to retaliation for such protected activity is entitled to the same remedies and damages that are available to an employee who has been subjected to illegal employment discrimination.
There is no broadly inclusive federal statutory law protecting employees who “blow the whistle” on illegal conduct by their employer. There is a patchwork of separate federal laws that offer protection to employee whistleblowers for specific types of misconduct in different industries, such as the whistleblower provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), which protects whistleblowers in the banking industry from retaliatory discharge or change in the conditions of their employment when they provide information about violations of the law to the appropriate authorities, and the Major Frauds Act (MFA), which is designed to stop fraud in government contracts worth over $1 million and has a whistleblower provision that protects any individual who assists in furthering an MFA case from retaliation by their employer. These statutory protections cover a significant cross section of the American workforce but there are a lot of gaps.
Federal, state and local government employees have protection under the First Amendment of the U.S. Constitution from dismissal when they engage in speech on matters of public concern, which can include disclosure of wrongdoing, if the speech meets the test announced by the U.S. Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 574 (1968), “absent proof of false statements knowingly or recklessly made.” State and local government employee whistleblowers have additional protection from retaliatory discharge under Section I of the Civil Rights Act of 1871, 42 U.S.C. §1983, which prohibits the violation of one’s constitutional rights under color of law and provides a tort remedy for retaliation for protected speech.
In the vanguard decision of Petermann v. International Brotherhood of Teamsters, 174 Cal.App. 2d 184, 344 P.2d 25 (1959), California became the first state to recognize the public policy exception to the employment at will doctrine when the appellate court in that case declared that an at will employee who alleged that he had been discharged for refusing to give perjured testimony as requested by his employer can bring a civil action in tort for damages arising from the wrongful discharge. The public policy exception to the at will doctrine and the contours of the tort of wrongful discharge in violation of public policy as developed by several important decisions by the California Supreme Court form the cornerstone of whistleblowing law for employees in California.
Terminations for which redress in damages can be had because they violate public policy generally fall into four categories: (1) termination because the employee refused to violate the law; (2) termination because the employee was complying with a statutory duty, such as jury duty; (3) termination because the employee exercised a legal right, such as leave rights under the California Family Rights Act or under the FMLA; and, (4) termination for opposing or reporting an employer’s unlawful conduct, such as objecting to the employer’s shipping of defective parts that would endanger public safety in violation of a statute or reporting to management that the employer failed to pay overtime wages to employees as required by law. For further discussion about the tort of wrongful termination in violation of public policy visit the page of this website that discusses wrongful termination.
California does have a broadly inclusive whistleblower law found in §§1102 – 1106 of the Labor Code that protects employees from retaliatory discharges, discipline or changes in an employee’s conditions of employment for reporting violations of law by their employer to the proper authorities. Under the California whistleblower law, in general, an employer is prohibited from preventing an employee from disclosing any information to a government or law enforcement agency the employee reasonably believes indicates a violation by anyone, including the employer, of a federal or state law or regulation. The whistleblower law prohibits an employer from retaliating against an employee for making such a disclosure of information. The whistleblower law also prohibits an employer from retaliating against an employee for refusing to participate in any activity that would result in a violation of a federal or state law or regulation.
The whistleblower law creates a whistleblower hotline in the California Attorney General’s office for the reporting by anyone of violations of state or federal laws or regulations and of violations of fiduciary responsibility by companies to their shareholders, investors and employees. Employers are required to post a prominent notice to employees of the whistleblower hotline. It is a criminal misdemeanor offense for an employer to violate the whistleblower law and an aggrieved employee may be able to recover damages suffered due to his employer’s violation of the whistleblower law. Empoyees of private companies and California public employees are covered by the whistleblower law.
