Whistleblower Protection in California – A Guide to The Law

California whistleblower protection laws prohibit employers from retaliating against workers who come forward to report suspected violations of

• laws,
• regulations and
• public policy.

For example, California laws against whistleblower retaliation would protect:

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

What is whistleblower retaliation?

Workplace retaliation against an employee whistleblower can take multiple forms.

Whistleblower retaliation can be as extreme as wrongful termination – that is, the loss of the employee’s job – or wrongful constructive termination, in which the employer makes working conditions so intolerable for the employee that s/he has no choice but to resign.

But retaliation against an employee whistleblower can also be more subtle and can include:

• Demotion;
• An unfair write-up of the employee;
• Failure to promote to a higher position when warranted by merit;
• Threats to turn a worker in to ICE is he makes a labor complaint;
• Denial of access to training or professional development opportunities; or
• Denial of access to resources necessary for the employee to do his/her job properly.⁴

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

California whistleblower protection laws give employees who are retaliated against for reporting violations of law the right to sue their employers for damages.

If you prevail in a whistleblower retaliation lawsuit against your employer, you may be entitled to damages that could include:

• Lost wages and benefits;
• Compensation for physical pain, mental suffering and/or loss of career opportunities due to the whistleblower retaliation; and/or
• In some cases, punitive damages to punish your employer for egregious misbehavior, and/or reimbursement for your attorney’s fees.

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

• 1. What laws protect employees 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?

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

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

California whistleblower protection laws are set forth in a variety of different statutes that cover slightly different situations. The most important of these laws against whistleblower retaliation are:

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 employers from retaliating against an employee for

• disclosing information that the employee reasonably believes discloses 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 the employee reasonably believes is a violation of or noncompliance with a law or regulation.⁵

Note that you are protected by the whistleblower protections of Labor Code 1102.5 even if it turns out that your employer did not violate the law. Whistleblowing is not insubordination as long as you reasonably believe that a violation of law occurred.⁶

Also, your employer can still be liable for whistleblower retaliation even if you never actually reported a violation of the law. Employers can violate the section by retaliating against an employee because the employer wrongly believed s/he had reported a violation, or because the employer believed s/he was about to report a violation.

Example: Anne starts a new job as a secretary for a foreclosure consultant. After a few weeks on the job, she looks over some documents that reasonably–but, it turns out, incorrectly–suggest that her employer might be engaged in California foreclosure fraud.

Anne discusses her suspicions with another secretary at the firm named Lindsay. Anne tells Lindsay that she is thinking of reporting her suspicions to a state agency. But Anne never gets around to doing so.

Lindsay tells their boss, the owner of the company, about her conversation with Anne. The owner promptly fires Anne.

As it turns out, the foreclosure firm was not actually engaged in illegal activity, and Anne never actually reported illegal activity to the government. However, her boss still engaged in whistleblower retaliation by firing her because he believed she might report what she believed to be a violation of law.

California’s general whistleblower protection law also prevents employers from

• retaliating against employees for whistleblower activities the employee engaged in while working at a previous employer, and
• retaliating against employees for whistleblower activities engaged in by members of the employee’s family.

Should a Labor Code 1102.5 case go to trial, the employee has the initial burden to show by a preponderance of the evidence that their whistleblowing was a contributing factor in the employer’s adverse actions. But then the employer has to show by clear and convincing evidence that their adverse actions would have occurred even if the employee had not engaged in whistleblowing.

If the employer fails to meet this employee-friendly burden of proof, then the employer should be held liable for whistleblower retaliation.⁷

1.1.1. Mental health advocates

Starting in 2020, patients’ rights advocates in county mental health facilities may not be prohibited from providing information or testifying as long as they reasonably believe their information shows that a law has been violated. And employers may not discriminate against them 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 provides protection specifically for employees who report Labor Code violations to the California Labor Commissioner.⁹

Complaints to the Labor Commissioner by employees are most likely to involve wage and hour law violations, such as an employer

• paying less than minimum wage,
• failing to give an employee overtime pay or
• failing to provide required meal and rest breaks.

As with LC 1102.5, Labor Code 98.6 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

Example: Tom is a mechanic. He works for a garage that repeatedly asks him to misrepresent his hours so that it does not have to pay him overtime.

Tom eventually gets fed up with this and files a complaint with the Labor Commissioner. His complaint is successful, and the garage owner is forced to pay Tom for the overtime pay he is owed.

Tom no longer trusts his boss at the first garage and applies to another garage in the same city in response to a job posting. But his current employer is a friend of the owner of the second garage and tells him about how Tom made trouble over unpaid overtime. As a result, the second garage owner refuses to even interview Tom.

The second garage owner’s behavior is a form of whistleblower retaliation under LC 98.6 even though Tom doesn’t work there.

Note that Labor Code 1197.5 also prohibits employer retaliation against employees who report – or take legal action to correct – sex-based wage discrimination.

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

Similarly, Labor Code 6310 LC prohibits whistleblower retaliation against employees who report violations of occupational health and safety rules to the California Division of Occupational Safety and Health (Cal/OSHA).¹¹

Like the previous two California whistleblower protection laws we discussed, LC 6310 also prohibits employer discrimination or retaliation against family members of people who report worker health and safety violations.¹²

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

If you work for the California state government, you are covered under a special whistleblower retaliation law that applies only to state public employees.

California’s public employee whistleblower law, known as the “California Whistleblower Protection Act” and set forth in Government Code 8547 and later sections, differs from other whistleblower protection laws that cover private-sector employees in several important ways.

Whistleblower laws that apply to private-sector employees only protect employees who report suspected violations of law. But 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.

Disclosures protected by California’s public-sector whistleblower law are often made (but don’t necessarily have to be made) to the State Auditor’s Office or the Commission on Judicial Performance.¹³

Example: Lourdes is a nurse with the California Department of Corrections and Rehabilitation; her job involves treating state prison inmates.

Lourdes notices that some of her colleagues are actively hostile to the prisoners they are supposed to be helping. They sometimes refuse to do a thorough job of treating injuries or illnesses. In Lourdes’ opinion, their behavior represents professional incompetence and endangers the health of some inmates.

So Lourdes reports her observations to a prison administrator and the State Auditor’s Office. An investigation follows, and several of the colleagues about whom Lourdes complained are transferred to other positions.

Lourdes’ supervisor, it turns out, is a good friend of the colleagues who were transferred. The supervisor begins to treat Lourdes rudely and assigns her to the most grueling night shifts. He also refuses to support Lourdes when she tries to get a promotion within the facility.

Lourdes may be a victim of whistleblower retaliation under the public-sector California Whistleblower Protection Act.

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

California employees should also be aware of several other laws that provide whistleblower protection in very specific situations.

Qui tam whistleblower retaliation

One of these additional whistleblower retaliation laws is the “qui tam” section of the California False Claims Act.

California’s qui tam law allows an employee to sue their employer on behalf of the state government if the employer has committed

• fraud or
• embezzlement with respect to government funds.

If an employer then retaliates against an employee for bringing a qui tam suit, the employee has the right to sue for qui tam whistleblower retaliation.¹⁴

FEHA whistleblower retaliation

The Fair Employment and Housing Act is California’s main law prohibiting workplace harassment and employment discrimination. The FEHA also has a provision prohibiting employers from retaliating against employees who oppose or report violations of that law.

Wrongful termination or retaliation under the FEHA can be the basis of an employee lawsuit similar to those under other whistleblower protection laws.

Sarbanes-Oxley whistleblower laws

The whistleblower protections of the federal Sarbanes-Oxley Act of 2002 (which was designed to protect investors from fraudulent accounting by public companies) give employees of publicly-traded companies the right to sue for whistleblower retaliation if their employer retaliates against them 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. And ex-employees can demand a jury trial if they believe they were terminated in retaliation to their whistle-blowing.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.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 employees and other people who disclose improper government activities.¹⁸

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

Public policy wrongful termination is an exception to at-will employment in California. This means that even at-will employees may not be terminated for reasons that violate a fundamental public policy.

In other words, 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

The last of these, of course, overlaps with California whistleblower protection laws.

Public policy wrongful termination only applies where employees lose their jobs. It does not apply when they merely face discrimination or retaliation at work.

But in cases where an employee is fired for reporting a violation of law at their employer, the difference between whistleblower retaliation and public policy wrongful termination is hazy. It basically depends on which legal theory you and your employment attorney determine will be more helpful to your case.

In many cases, employees who are fired for reporting a violation of law may find that it is in their best interest to sue their former employer both

• under a specific California whistleblower protection law that applies to their case and
• under the theory of public policy wrongful termination.

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

If your employer fires or otherwise retaliates against you for reporting a violation of the law (acting as a whistleblower), then your most powerful option is likely to be filing a whistleblower retaliation lawsuit in California Superior Court.

But California’s whistleblower laws also give you either require you to file, or give you the option of filing, an administrative complaint with a state agency before (or in addition to) filing a lawsuit.

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 violates Labor Code 98.6 or 6310 by retaliating against you for reporting labor or occupational health/safety law violations, then you may also file a complaint about this whistleblower retaliation with the California Labor Commissioner.²²

But you are not required to do so. If you prefer, you and your employment attorney may skip this step and go directly to a lawsuit.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, then the process is a bit different. Before you may file a lawsuit against the state agency that employed you, you MUST file a complaint with the California State Personnel Board.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“. This is a time limit within which you have to file a complaint or suit after the retaliation occurs.

The statutes of limitations for filing lawsuits and/or administrative complaints about whistleblower retaliation under California employment laws are set forth in the following chart:

Whistleblower Protection Law	Statute of Limitations
Labor Code 1102.5 – general whistleblower protection	Three (3) years to file a lawsuit in California Superior Court25
Labor Code 98.6 – whistleblower protection for reporting labor law violations	Six (6) months to file a complaint with California Labor Commissioner26, or three (3) years to file lawsuit
Labor Code 6310 – whistleblower protection for occupational health and safety complaints	Six (6) months to file a complaint with California Labor Commissioner27, or three (3) years to file lawsuit
Government Code 8547 – whistleblower protection for state government employees	Twelve (12) months to file a complaint with State Personnel Board28

5. What damages can I win in a lawsuit?

The damages that you can receive from your employer as compensation for whistleblower retaliation will vary depending on the facts and legal basis of your whistleblower protection suit. That said, damages may include:

Labor Code 1102.5 lawsuits

For a suit in Superior Court for damages under LC 1102.5 (California’s most general whistleblower protection law), you might receive:

1. Lost wages and benefits, if you were wrongfully terminated from your job for whistleblower activities. This is the back wages that you could reasonably have expected to earn at your job, plus the value of any employee benefits, MINUS the amount of wages and benefits that you actually earned or could have earned from substantially similar employment.
2. Damages for emotional distress/pain and suffering arising from the whistleblower retaliation. This can include compensation for physical pain, mental suffering, loss of enjoyment of life, grief, anxiety, or humiliation.
3. Punitive damages to punish the employer for its behavior, if your employer is found to be guilty of oppression, fraud or malice.²⁹

Labor Code 98.6 and 6310

For claims of whistleblower retaliation for reporting violations of wage/hour or occupational health and safety laws, you may choose to file a complaint with the Labor Commissioner over the retaliation.

After investigating the whistleblower retaliation complaint, the Labor Commissioner may determine that a whistleblower protection violation occurred and order your employer to

• rehire or reinstate you in your previous position,
• reimburse you for lost wages with interest, and/or
• reimburse you for reasonable attorney’s fees that you incurred because of the investigation.³⁰

Public employee whistleblower protection

Under the state employees’ Whistleblower Protection Act, your whistleblower protection violation complaint will be investigated by the State Personnel Board. If the Board determines that you were the victim of whistleblower retaliation, it may order the following remedies/damages:

• Reinstatement in your previous position;
• Back pay;
• Restoration of lost service credit;
• Compensatory damages; and/or
• Expungement of any adverse employment record that resulted from the retaliation.³¹

For questions about California whistleblower retaliation or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.

We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

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