In 1984, the Legislature enacted California Labor Code section 1102.5 in order to protect whistleblowers from retaliation against their employers. The law was amended in 2003 and again in 2013, to add protections afforded to employees. In 2013, specifically, the Legislature amended section 1102.5(b), so that an employee’s disclosure “to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or non-compliance” was deemed protected activity. On May 22, 2023, the California Supreme Court addressed whether reporting a violation that is already known to an employer or agency constitutes a protected disclosure under Labor Code section 1102.5(b) in People ex. Rel. Lilia Garcia-Brower v. Kolla’s, Inc., S269456.
In this case, a bartender (A.C.R.) complained to the club owner that she had not been paid wages owed to her. The club owner threatened to report A.C.R. to immigration authorities and terminated her. A.C.R. filed a complaint with the Division of Labor Standards Enforcement (DLSE) to try to recoup her lost wages. The DLSE determined that the club and its owner had violated the law and proposed remedies; however, both declined to make A.C.R whole. The Labor Commissioner then sued the club and its owner for violations of the California Labor Code which included Labor Code section 1102.5.
In considering whether reporting a violation already known to an employer is protected activity, the California Supreme Court considered the definition of the word “disclose.” It concluded that “disclose” means to “make [something] openly known” or to “open [something] up to general knowledge.” Thus, a disclosure can include information already known to an employer and is not limited to information that is previously unknown. A.C.R.’s revelation that the club was not paying her all wages due was, therefore, protected activity, even though the employer was “at least aware of – if not responsible for – the non-payment of wages.”
If you feel that you have been retaliated against in the workplace, please feel free to call Hunter Pyle Law for a free consultation at (510)-444-4400 or inquire@hunterpylelaw.com.