The Role of the “Same Decision” Defense in California Whistleblower Cases

Whistleblower cases in California differ from discrimination cases in several important ways. Among other things, Section 1102.6 of the Whistleblower Protection Act (found in the California Labor Code) provides that where an employee proves by a preponderance of the evidence that discriminatory activity was a “contributing factor” with respect to a discriminatory act, the burden […]

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California Whistleblower Protections Cover Complaints that Employers Already Know About

On May 22, 2023, the California Supreme Court issued an important decision clarifying that employers violate the law if they terminate or retaliate against employees who complain about violations that wereicon-whistleblower already known to the employer. In People ex rel. Garcia-Brower v. Kolla’s (S269456), the employee worked for a nightclub in Orange County. She complained that she had not been paid for her three previous work shifts. The employer then threatened to report her to immigration authorities and fired her.

The plaintiff then filed a complaint with the Division of Labor Standards Enforcement (DLSE) of the State of California’s Department of Industrial Relations. The DLSE investigated and prosecuted her complaint. Unfortunately, the trial court held that Labor Code section 1102.5, California’s whistleblower protection law, did not apply because the employee had complained to her employer rather than to a government agency. The court of appeal affirmed on different grounds, holding that in order to be protected under section 1102.5, an employee’s complaint must report something that the employer was not already aware of. Continue reading “California Whistleblower Protections Cover Complaints that Employers Already Know About”

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

icon-whistleblowerIn 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. Continue reading “California Supreme Court Rules that Whistleblower Protections Apply to Employees Who Disclose Illegal Conduct Already Known to an Employer”

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New Attorneys Fees Provision Should Apply Retroactively to Pending Whistleblower Cases

California’s whistleblower law, Labor Code section 1102.5, helps discourage employers from retaliating against employees who report unlawful activity in the workplace. It’s an important law because it safeguards other rights and privileges afforded to employees.   Last fall, Governor Gavin Newsom signed into law AB 1947, an amendment to Section 1102.5. The new Labor Code […]

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California Resident Managers’ Workplace Rights

Live-in resident managers face a unique challenge: their bosses are often also their landlords. California law requires an individual to live on the premises if a building has sixteen (16) or more units. Cal. Code Regs. tit. 25, § 42. These individuals are often referred to as resident managers. Resident managers carry out various job […]

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Public Employee Whistleblowers Have Important Rights in California under Labor Code section 1102.5

Public employees who are terminated after they blow the whistle on illegal Gear and Gavelconduct often have the opportunity to appeal their termination to some type of board or officer.  That entity in turn usually has the authority to either rule on their claims or to make a recommendation to a civil service agency regarding whether the termination should be upheld or not.  These proceedings hold out the promise of swift justice-a hearing and a decision by an impartial fact-finder in a relatively short amount of time. In practice, however, they rarely result in any type of reinstatement or fairness.

Public employees who make use of these appeals often find that when they try to bring their claims in court, where they have a better chance of getting a fair shake, the public entity argues that they are barred (“precluded”) from suing because they already had a hearing as part of the appeal process.  In other words, public entities try to block public employees from suing just because the public employees make use of the civil service appeal process (which, as described above, is rarely fair or impartial).

That was the case in Bahra v. City of San Bernardino (9th Cir. 2019) Case No. 18-55789.  Mr. Bahra, the plaintiff, worked as a social services practitioner for San Bernardino County in the Department of Children and Family Services (“CFS”).  He discovered that a particular foster home was abusing children, but that CFS’s database did not reflect that history because of a series or database mistakes.  He then reported these errors to his manager. Continue reading “Public Employee Whistleblowers Have Important Rights in California under Labor Code section 1102.5”

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PAGA, Individual Claims, Public Entities, and Section 1102.5 Whistleblower Claims

On September 8, 2019, the Court of Appeal for the Second Appellate District issued an important decision in the case of Hawkins v. City of Los Angeles (Case Nos. B279719, B282416).  That decision casts light on the following questions:  (1) Whether PAGA claims can be brought on behalf of an Gear and Gavelindividual, as opposed to a group of aggrieved employees; (2) Whether PAGA claims can be brought against public entities; and (3) Whether attorneys’ fees are recoverable under Labor Code section 1102.5.

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Whistleblower Rights under California Labor Code Section 1102.5

A whistleblower is someone who calls attention to unlawful behavior or activities in the workplace. California Labor Code section 1102.5 is one of the strongest whistleblower protection laws in the land. The recent decision of Ross v. County of Riverside (2019) 2019 WL 2537342 further strengthens that law. by clarifying that employees need only believe that some illegal activity is happening when they report it. They do not have to expressly state that the activity violates the law in order to be protected. Continue reading “Whistleblower Rights under California Labor Code Section 1102.5”

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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. Continue reading “An Employer May be Held Liable for Whistleblower Retaliation When an Employee Reports Concerns about Compliance with Tax Laws”

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An Employer Cannot Retaliate Against an Employee For Filing a Police Report

Plaintiff Rosa Lee Cardenas, a dental hygienist, lost an expensive wedding ring in the workplace.  Suspecting that a coworker stole the ring, Ms. Cardenas wanted to file a police report.  However, her employer expressed his disapproval and requested that Ms. Cardenas not tell the police that she left the ring on the Gear-and-Gavel_goldbreakroom table at work.  Despite her employer’s objections, Ms. Cardenas filed a police report.  After the police came to the dental office on two occasions to investigate, Ms. Cardenas’ employer told her the situation was causing great tension and fired her.

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