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 were 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. (more…)
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…)
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 individual, 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.
Ninth Circuit Considers Whether Morbid Obesity is a Disability Under the Americans with Disabilities Act
Plaintiff Jose Valtierra, a facility maintenance technician, sued his employer Medtronic, Inc. alleging that he was terminated on account of his disability, morbid obesity, in violation of the Americans with Disabilities Act (ADA). Mr. Valtierra worked for Medtronic, Inc. for about ten years. By the last year of his employment, he had gained 70 pounds, taken time off due to joint pain, and struggled to walk. Mr. Valtierra’s supervisor, noticing that the employee was struggling to walk, allegedly became concerned about whether Mr. Valtierra was able to complete his work assignments. When the supervisor checked the computer system, he discovered that Mr. Valtierra had falsified work records, so Medtronic, Inc. terminated him.
The district court looked at whether Mr. Valtierra suffered from a disability for purposes of the ADA and whether Medtronic’s termination was unlawful. (more…)
Intolerable Working Conditions Support a Nurse’s Constructive Termination Claim
A 54-year old Filipino woman, Shirley Galvan, worked for Dameron Hospital Association (Dameron) as a nurse for approximately twenty-five years. In 2011, Doreen Alvarez became Ms. Galvan’s supervisor and allegedly began harassing Ms. Galvan and other Filipino employees. Ms. Alvarez commented that the Filipino employees could not speak English, had thick accents, made too much money, were too old, and had been at Dameron too long. Ms. Alvarez threatened to “clean house” and repeatedly humiliated the Filipino employees by making derogatory statements about their accents, level of education, and work performance. Ms. Galvan went out on stress leave due to the anxiety she was experiencing as a result of this harassment. She was constructively terminated in 2014.
Ms. Galvan brought suit against Dameron and Ms. Alvarez, alleging that she had been discriminated against and harassed on the basis of her age and national origin, and constructively terminated in violation of the California Fair Employment and Housing Act. (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…)
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…)
Can I Be Fired for My Political Beliefs or Activities in California?
In this time of political turbulence, many people wonder if they can be fired for their political beliefs or activities. In California, the answer to that question is no, thanks to the provisions of California Labor Code sections 1101 and 1102.
Section 1101, which has been on the books since 1937, provides as follows:
No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
Note that section 1101 is broad, and includes rules, regulations or policies that tend to control or direct the political activities or affiliations of employees. This would include terminating an employee for his or her beliefs, because doing so would tend to control his or her activities or affiliations.
Section 1102, also enacted in 1937, provides as follows:
No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
The California Supreme Court has interpreted these laws favorably for employees in a pair of cases. First, in Lockheed Aircraft Corp. v. Superior Court of Los Angeles County (1946) 28 Cal.2d 481, a group of employees had sued claiming that Lockheed fired them because of their political activities. In response, Lockheed raised a series of challenges to section 1101.
The Court rejected each of Lockheed’s challenges. The Court held first that section 1101 is not so uncertain or ambiguous as to be unconstitutional. The Court further held that section 1101 was not an arbitrary or unreasonable limitation on the right to contract.
Perhaps most importantly, the Court recognized that an employee who suffers a violation of section 1101 can bring a private right of action for damages resulting from a breach of his or her employment contract. In reaching this holding, the Court noted that Labor Code section 1105 provides that “Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter.”
The Court then reasoned that, “a contract of employment must be held to have been made in the light of, and to have incorporated, the provisions of existing law. Hence, upon violation of the section, an employee has a right of action for damages for breach of his employment contract.” Lockheed Aircraft Corp., 28 Cal.2d at 486. (citations omitted)
Three decades later, the Court revisited sections 1101 and 1102 in Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458. In that case, a group of students claimed that the defendant was discriminating against gays and lesbians by refusing to hire them, and that such conduct violated sections 1101 and 1102.[1]
The Court held that sections 1101 and 1102 “serve to protect ‘the fundamental right of employees in general to engage in political activity without interference by employers.’” 24 Cal.3d at 487. For this reason, the statutes should not be narrowly confined to partisan activity. Furthermore, “[t]he term ‘political activity’ connotes the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons.” (emphasis in original)
The Court then reiterated its holding in Lockheed that employees who are fired in violation of sections 1101 and 1102 can bring claims for damages.
If you are fired for your political beliefs or activities in California, you may be able to bring several different types of claims. First, you can sue under sections 1101 and 1102 directly. You may also be able to sue for wrongful termination in violation of public policy. See, e.g., Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890. Third, you may be able to sue for breach of the covenant of good faith and fair dealing. See, e.g., Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658.
It is not clear whether an employee who prevails under section 1101 or 1102 will be entitled to his or her attorneys’ fees. Therefore, you may also wish to explore bringing a claim under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), which provides for reasonable attorneys’ fees and costs. See Cal. Lab. Code section 2699(g)(1).
If you have questions about your rights in the workplace, please feel free to contact Hunter Pyle Law for a free and confidential initial intake. We can be reached by phone or by text at (510) 444-4400 or at inquire@hunterpylelaw.com.
[1] At that time, sexual orientation was not a protected category under the Fair Employment and Housing Act. It is now. See Cal. Govt. Code section 12940(a)(1).