Whistle Blowing And Retaliation

Discrimination Claims With A Spin…And Then Some

To make sure California management and business owners “get it,” federal and state laws create variations on the theme of unlawful discrimination. Not only is it unlawful for business to take adverse action against an employee because of a protected class, it is unlawful for management to take action against an employee for “exercising” their rights either as a member of a protected class or because the law otherwise grants the employee a certain right. These types of claims generally can be described as 1) retaliation claims and/or 2) “whistle blowing” claims.

It’s In The Eye Of The Beholder

Under California law, a retaliation or whistle blowing claim has three basic elements: 1) the employee engaged in some form of “protected activity,” 2) the employer took adverse action against that employee and 3) there is a “causal connection” between the two. If you are thinking, “boy that sounds easy to prove,” you are right. It is! It can be as simple as employee is fired within a short period of time after engaging in protected activity, no matter how persuasive the additional evidence of poor performance of the employee. What’s worse, the employee generally need only have a “good faith belief” to engage in the protected activity or for “blowing the whistle” to be protected. They don’t have to be right.

Examples Of “Protected Activity”

Employee complains they are being sexually harassed. Employee complains another employee is being unlawfully harassed. Employee participates in an administrative investigation or hearing. Employee files a wage claim. Employee calls in building inspector for alleged building safety violation (ditto for health and safety violation in the workplace). Employee reports alleged improprieties in GAAP accounting to the Securities and Exchange Commission under Sarbanes-Oxley. And the list goes on and on . . . .

Tip Of The Iceberg

Please note that of all the areas of labor and employment law the sky’s the limit for retaliation and whistle blowing. In California, the amount of laws that establish “protected activity” is varied and voluminous. To even attempt to capture all of them here would likely blow out your high speed broadband Internet connection and give you a substantial headache.

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