California Supreme Court Rules that Whistleblower Protections Apply to Employees Who Disclose Illegal Conduct Already Known to an Employer

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. (more…)

New Amendment to Existing Law Strengthens Rights of California Employees Who Enter Into Settlement Agreements with Their Employers

The majority of disputes that arise in the workplace and proceed to litigation find their resolution not at trial, but in a settlement—agreed to by the employer and the employee and hopefully beneficial to both.

Because so many cases end in settlement, the terms of the settlement agreement become crucial for ensuring a just outcome that is fair to both parties. This is especially so because the power dynamic in negotiations between employers and their employees is often skewed in favor of the employer.

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Can They Fire Me for Complaining About Coronavirus? Your Right to a Safe Workplace in California

Hunter Pyle Law has received a number of calls from workers who are being targeted for retaliation after complaining that their workplace was not safe during the COVID-19 pandemic. This post explores some of the California laws that protect such workers. In short, as explained below, workers in California who speak out against unsafe conditions in the workplace, including unsafe conditions related to wearing masks and/or not being allowed to work from home, may be protected by three different sections of the California Labor Code.

Cal. Labor Code section 6310

California Labor Code section 6310 makes it illegal to retaliate against employees who complain, either verbally or in writing, either to their employer or to the government about unsafe working conditions or work practices. This section would in theory protect workers who complain that it is unsafe to work without masks, for example, as well as workers who protest being forced to work at the office instead of from home during a pandemic.

In terms of remedies, section 6310(b) provides that any employee who prevails on a claim under section 6310 is entitled to reinstatement and back pay. Section 6310(c) goes further, providing that an employer may not retaliate against the family members of any person who has, or is perceived to have, engaged in any acts protected by section 6310

Cases interpreting section 6310 have clarified that this law applies to situations in which an employer makes an informal complaint to his or her supervisor. Initially, section 6310 was interpreted as being limited to formal complaints made by employees to the Division of Labor Law Enforcement. See Division of Labor Law Enforcement v. Sampson (1976) 64 Cal.App.3d 893. However, after the Sampson decision the Legislature amended section 6310 to add complaints made to employers.  (Stats. 1977, ch. 460, § 1, p. 1515, italics added.)

As a result, later decisions have recognized that oral and written complaints to employers are protected under section 6310.  See Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109. Additionally, workers need not be right about their complaints as long as they have a good faith belief in them. See, e.g., Cabesuela, 68 Cal.App.4th at 109, in which the court agreed with the holding in  Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299-300 that, “… an employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe.” (italics added, fn. omitted.) In other words, section 6310 protects employees from discharge for good faith complaints about working conditions which they believe to be unsafe, even if the employees are wrong.

Finally, workers are not limited to complaints that are based on OSHA standards or orders.  Hentzel, 138 Cal.App.3d at 299–300. Nor are they required to proceed before the Labor Commissioner.  Cabesuela, 8 Cal.App.4th at 109.  Rather, they have a direct right of action and can file their claims in court. Id.

Cal. Labor Code section 6311

Section 6311 protects workers who refuse to work because of unsafe conditions.  In order to fall within the protection of section 6311, a work action must meet the following requirements:

1. The work must violate the Labor Code, including section 6400, or any occupational safety or health standard, or any safety order of the division or standards board; and
2. The violation must create a real and apparent hazard to the employee or his or her fellow employees.

Section 6311 on its face applies only to discharges and layoffs.  The remedies provision specifies that an employee who is not paid because of his or her refusal to perform work “in the performance of which this code, any occupational safety or health standard or any safety order of the division or standards board will be violated and where the violation would create a real and apparent hazard to the employee or his or her fellow employees” has a right of action for wages for the time the employee is without work as a result of the layoff or discharge.

Cal. Labor Code section 1102.5

Finally, section 1102.5 may also protect workers who raise health and safety concerns.  Section 1102.5 is addressed in more detail in other posts on this blog, but the basic provisions are as follows:

First, subsection (a) provides that employers cannot take steps to prevent employees from disclosing information that the employees believe discloses the violation of a law, rule, or regulation. That subsection reads as follows:

(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

Next, subsection (b) prevents employers from retaliating against employees who “blow the whistle” by complaining about unlawful conduct in the workplace. It reads as follows:

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

Last, subsection (c), like Labor Code section 6311, protects workers who refuse to perform work that would result in the violation of a law, rule, or regulation. Unlike section 6311, it does not appear to be limited to discharge or layoff. Thus, a worker who is retaliated against but not actually fired may wish to consider bringing a claim under section 1102.5(c) instead of section 6311:

(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.

If you have questions about your right to a safe and healthy workplace, or if you have been retaliated against for standing up for your rights at work, please feel free to contact the experienced attorneys at Hunter Pyle Law for a free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquires@hunterpylelaw.com.

Court of Appeal Rules in Favor of Gay CHP Veteran Suing for Sexual Orientation Discrimination

An openly gay California Highway Patrol (CHP) officer, Jay Brome, brought suit against his employer after enduring twenty years of harassment and discrimination.  The trial court dismissed his claims on the grounds that they were not filed within the statute of limitations.  The California Court of Appeal for the First District reversed the trial court’s ruling in a unanimous opinion, holding that equitable tolling could extend Mr. Brome’s statute of limitations.  (Brome v. California Highway Patrol, A154612, filed January 28, 2020.) (more…)

Disabled Psychologist’s Claims for Discrimination, Harassment and Retaliation against Department of Corrections Fail Despite Providing Doctor’s Notes

As an employee, there may be times when you need an accommodation in the workplace due to a disability.  Sometimes, your employer may ask for a doctor’s note in the course of engaging in the interactive process.  How specific do the doctor’s notes need to be?  A recently published case provides some insight into this question.

Plaintiff John Doe began working at Ironwood State Prison as a psychologist in 2012.  In 2013, he requested to work in a quiet place that allowed him to focus and concentrate.  (more…)

San Francisco State University Professor Prevails on Retaliation Claim

San Francisco State University (SFSU) hired Rashmi Gupta in 2006 as a tenure track assistant professor in the School of Social Work.  Generally, tenure track professors work for a six year term.  After that, SFSU decides whether or not to promote a tenure track professor to the position of associate professor and award lifetime tenure.

Dr. Gupta initially faced some hurdles when she began teaching at SFSU.  Her student evaluations were lower than average; however, Dr. Gupta was praised for her efforts in research, scholarship and publication.  By 2009, Dr. Gupta had overcome her initial challenges and was receiving positive reviews from students and peer evaluators.

In 2009, Dr. Gupta and several other women of color in the School of Social Work lodged a complaint with the provost to express their concerns about the abuse of power, bullying, micromanagement and a hostile work environment at SFSU.  At a follow up meeting, the women expressed concern about the Director of the School of Social Work, and more generally, about discrimination against people of color on campus.

Less than two months after Dr. Gupta lodged her complaints, she received a negative performance review.  Many of the criticisms in the review were inaccurate.  Dr. Gupta then emailed a colleague complaining that SFSU was hostile toward women of color, and named two individuals for creating the hostile work environment, Don Taylor and Rita Takahashi.  At a meeting in March 2010, Dr. Taylor told Dr. Gupta that he knew about the emails, and threatened “to get even with [her].” (more…)

California Court of Appeal Addresses Meaning of “Physically Disabled”

The California Court of Appeal recently issued an opinion that looked into whether an employee has a disability for purposes of the Fair Employment and Housing Act (FEHA). Ross v. County of Riverside, D075106 (published June 10, 2019).  Plaintiff Christopher Ross worked for the County of Riverside as a deputy district attorney.  In 2013, Mr. Ross discovered that he might have a serious neurological condition.  (more…)

LA Unified School District Teacher’s Claims Alleging Harassment and Retaliation Fail

Aurora Le Mere was a Los Angeles Unified School District (LAUSD) teacher for thirteen years.  In that time, she filed a number of complaints and claims arising from her employment, including worker’s compensation claims and administrative complaints regarding LAUSD’s violations of provisions of the Education Code.  In 2007, she filed a lawsuit against LAUSD and two individuals for discrimination, harassment and civil rights violations.  All her claims and cases through 2007 settled.  Then, in 2015, Ms. Le Mere filed another complaint against LAUSD and six individuals claiming that she had been unlawfully harassed and retaliated against since filing the 2007 case and worker’s compensation claims.

The defendants successfully demurred twice to the 2015 complaint.  (more…)

An Employer May be Held Liable for Whistleblower Retaliation When an Employee Reports Concerns about Compliance with Tax Laws

On January 23, 2019, the First Appellate District held that an employer may be liable for whistleblower retaliation when an employee reports concerns about compliance with tax laws.  Siri v. Sutter Home Winery, Inc., 1st Appellate Dist. Case No. A141335 (filed Jan. 23, 2019).  Plaintiff Says Siri, an accountant for Defendant Sutter Home Winery, Inc. doing business as Trinchero Family Estates (TFE), believed her employer was failing to comply with certain California sales and use tax laws.  She consulted with the California State Board of Equalization, who confirmed some of Ms. Siri’s suspicions.  Ms. Siri informed her direct supervisor, top management, and the company’s general counsel that TFE was not paying and had not paid use taxes it owed.  TFE authorized some payments, but declined to let Ms. Siri pay for others. (more…)

Ninth Circuit Issues Decision Regarding Employee’s Retaliation Claim Against Employer’s Attorney

In Arias v. Raimondo, Plaintiff Jose Anrulfo Arias filed suit against his employer’s attorney, Anthony Raimondo, for retaliation after Raimondo tried to have Arias taken into custody by U.S. Immigration and Customs Enforcement (“ICE”) during a deposition. Arias v. Raimondo, No. 15-16120 (June 22, 2017).  Raimondo was representing Angelo Dairy in a lawsuit that Arias had filed in 2006 alleging various wage and hour violations.  In an attempt to derail this lawsuit, Raimondo provided ICE with information helpful in determining Arias’ legal status in the United States, and offered to “make the necessary arrangements” to assist ICE in apprehending Arias just ten weeks before trial.  When Arias discovered what Raimondo had done, he settled his wage and hour claims out of fear that he might be deported.  Then, Arias filed suit against Raimondo for retaliation in violation of the the Fair Labor Standards Act (“FLSA”) under the theory that Raimondo was acting as Angelo Dairy’s agent when he retaliated against Arias. (more…)