How Far do Whistleblower Protections Go?

August 7, 2018 by

whistleblower protectionsWhistleblower Protections? When Michael Johnson learned that the company he worked for had amended its 2016 tax return to reduce its tax burden, he filed a whistleblower complaint against his employer. Blue Shield, he claimed, had listed over $3 billion less in premiums than the original filing report. Blue Shield responded with a lawsuit against Johnson for breach of contract, alleging he had shared confidential information about the company. Just how much credence is there to Blue Shield’s argument? Do whistleblower laws give employees the ability to disclose company secrets? For answers to these, and other business questions, contact a local business law attorney.

California Whistleblower Protections

In California, employees are encouraged to report suspected violations of state and/or federal law to appropriate agencies, which are then authorized to investigate claims of wrongdoing. In fact, as per California Labor Code Section 1102.5, individuals who report suspicions of wrongdoing by their companies are considered a protected class. Retaliation against such individuals is prohibited.

What, Exactly, Constitutes Whistleblowing?

Whistleblowing is the reporting of illegal or safety violations that may be occurring in the workplace. Employees may refuse to engage in activities deemed to be illegal or unsafe, and may ultimately report problems to applicable agencies for investigation.

Whistleblower Protections

Businesses may not legally create policies that prevent employees from reporting unsafe or illegal situations in the workplace. Additionally, the law provides that employers may not:

  • Retaliate against individuals who choose not to engage in workplace activities they believe to be against state or federal laws or OSHA regulations;
  • Retaliate against employees who report infractions.

Retaliation may take many forms, all of which are violations of California Labor Code.  Common examples include:

  • Demoting or firing the employee;
  • Denying training opportunities, promotions, or access to higher-level meetings;
  • Forcing the employee to quit by making work life untenable.

Section 1102.5 of the California Labor Code requires employers to make restitution for any of these actions and to reinstate the employee to a job from which they have been fired when these actions occur.

Whistleblower Protections from a Lawsuit?

One wonders whether or not whistleblower laws shield Johnson, who is being sued by Blue Shield. The truth is, the courts have reached different conclusions in cases across the United States in recent years. Generally speaking, they will want to take a look at a number of factors, ranging from how the materials were obtained and to whom they were given, to the employee’s need to preserve the items in order to “blow the whistle.” While a comprehensive policy regarding secret materials will help any company with its most confidential documents, it is unclear how such a policy will stand against whistleblower protections. [Read more…]

Filed Under: Blog, Whistleblower Retaliation Tagged With: , ,

Whistleblower Protection

February 1, 2017 by

WhistleblowerWhistleblower protection? Suppose you know that your place of employment engages in practices that contravene public policy or that are outright illegal. Let’s say you blow the whistle, and before you know it you are experiencing retribution for your actions, or perhaps are even fired? What are your options now?

Employees may not be retaliated against for being a whistleblower, but if retaliation does occur, an attorney who is schooled in labor law can be a lifesaver.

Whistleblower Case in Point

After a month-long whistleblower trial, Melody Jo Samuelson was rewarded a $1 million dollar verdict in her favor.

The case revolved around Samuelson’s claim that, as a state employee charged with evaluating the fitness of patients to stand trial, she was pressured into “returning patients to court to stand trial” even when they might not be ready. The complaint stated that the hospital’s chief of psychology compelled her and other staff to lower standards used in patient evaluations and otherwise depend on unreliable methods in order to taint the evaluations in favor of  competence. The goal was improved outcome statistics, but , Samuelson believed this resulted in patients facing trials that they were simply not competent to stand.

After Samuelson answered questions about the egregious practices under subpoena, she endured a backlash of retaliation ranging from the manipulation of her credentials file to outright false statements about her. She also claimed  the peer-review process was used to “extort” her.

After months of such retaliation, Samuelson was eventually fired, purportedly for committing perjury while testifying in a patient’s criminal case. On appeal to the State Personnel Board, she was reinstated a year later.

Upon her return to work, Samuelson found herself in an entry-level position, rather than in a clinical job. Her pay was shorted, false documents remained in her file, and insurance deductions were taken for the months when she had no coverage.

Samuelson took the state hospital and three of its employees to court with a claim of whistleblower retaliation. The Department of State Hospitals was found liable for the lion’s share of damages, with an order to pay $890,000. Her immediate supervisor was ordered to pay $50,000, and two other employees were ordered to pay $30,000 each.

California Whistleblower Law

Under California statute, employees cannot be fired for refusing to break the law, for exercising any constitutionally protected right or privilege, or for reporting violations of statute for the public benefit.

What if your employer enacts a policy stating that you are not allowed to disclose violations that you suspect are occurring? Is it possible to be terminated for cause if you break the contract?  The answer is no! Policies of this nature are unlawful to begin with, and you are not required to follow them. [Read more…]

Filed Under: Blog, Whistleblower Retaliation Tagged With: ,

Workers Compensation and OSHA Whistleblower Protection Laws

June 3, 2015 by

whistleblower protection lawsWorkers Compensation and OSHA whistleblower protection laws. A previous blog post detailed the Security and Exchange Commission’s efforts to assist workplace whistleblowers. It’s not just the federal government, however, that protects whistleblowers from retaliation by their employers. California has its own whistleblower laws – including a statute protecting employees who testify in workers’ compensation cases, and another statute protecting whistleblowers in cases involving Occupational Safety and Health.

Workers Compensation

Section 132a of the California Labor Code states it is the declared policy of California that there should not be discrimination against workers who are injured in the course and scope of their employment. It provides protection to employees against any employer who “discharges, threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer.”

Many California employers are aware of this prohibition on discriminating against employees who file claims, but are unaware that the law also protects employees who testify in workers’ compensation cases. The statute goes on to say:

“Any employer who discharges, or threatens to discharge, or in any manner discriminates against an employee because the employee testified or made known his or her intentions to testify in another employee’s case before the appeals board, is guilty of a misdemeanor, and the employee shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.”

The statute also prohibits insurers from encouraging employers to fire, or otherwise discriminate against, employees who are willing to testify in cases before the appeals board.

Occupational Safety and Health

Section 6310 of the California Labor Code states, “No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following:

1)    Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.

2)    Instituted or caused to be instituted any proceeding under or relating to his or her rights or has testified or is about to testify in the proceeding or because the exercise by the employee on behalf of himself, herself, or others of any rights afforded him or her.

3)    Participated in an occupational health and safety committee established pursuant to Section 6401.7.”

Under Section 6310, employees who have been subjected to this type of discrimination are entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of their employers.

Whistleblower Protection Laws and Legal Representation for Employers and Employees

If you believe that you have been subjected to discrimination based on your willingness to testify in a workers’ compensation case, or your willingness to make complaints about Occupational Safety and Health, you may wish to speak to a Santa Rosa whistleblower attorney about your rights. If you are an employer, and you want to ensure that you are in compliance with the above laws, you may also need legal advice. The labor attorneys at Beck Law P.C.  employment and labor law attorneys at Beck Law P.C. in Santa Rosa can give you the counsel you need. You can call or email our office today.

Filed Under: Whistleblower Retaliation Tagged With: , , , ,

Whistleblowers and Employer Retaliation

April 22, 2015 by

whistleblowers and employer retaliation, employer retaliation lawyerWhistleblowers and employer retaliation. Due to the expansion of the Securities and Exchange Commission’s watchful eye, and the lucrative rewards program offered to employees who come forward (10% to 30% of the money it collects) lawsuits involving retaliation and whistleblowing are on the rise.

Employers need to be aware that employees are encouraged to visit the SEC’s website to report claims whenever they believe their employer is failing to comply with SEC guidelines. See the excerpt below taken directly from the website:

Welcome to the Office of the Whistleblower

Assistance and information from a whistleblower who knows of possible securities law violations can be among the most powerful weapons in the law enforcement arsenal of the Securities and Exchange Commission. Through their knowledge of the circumstances and individuals involved, whistleblowers can help the Commission identify possible fraud and other violations much earlier than might otherwise have been possible. That allows the Commission to minimize the harm to investors, better preserve the integrity of the United States’ capital markets, and more swiftly hold accountable those responsible for unlawful conduct.

The Commission is authorized by Congress to provide monetary awards to eligible individuals who come forward with high-quality original information that leads to a Commission enforcement action in which over $1,000,000 in sanctions is ordered. The range for awards is between 10% and 30% of the money collected.

Sean McKessy
Chief, Office of the Whistleblower

Recently, a part time employee received a substantial reward for retaliation after reporting that JC Penney was overcharging customers by collecting sales tax on non-taxable purchases.

The law is clear that whistleblowers are protected and cannot be fired for turning in a claim. Here are more recent examples:

  • 2.2 billion, Johnson and Johnson, employees take a percentage in Risperdal whistleblower lawsuit
  • 38 million, Extendicare Health Services, employees take percentage in fraud whistleblower lawsuit
  • Chicago University, 3 million dollar award to employee wrongfully fired for whistleblowing
  • 525 million, Trinity Industries, Inc., employees take percentage in fraud whistleblower lawsuit
  • Playboy Enterprises, 6 million dollar award to employee fired for whistleblowing retaliation

For small businesses, complying with the SEC rules and guidelines is imperative.

Additionally, a disgruntled employee may turn you into the SEC when you may have not violated any regulations which would create increased work for your company during the SEC investigation, which could take away from your profit margin with considerable time, energy and expense on your part to defend the claim.

What we suggest moving forward:

  • Review work protocol to insure SEC regulations are met and sustained;
  • Encourage employees to come forward with their concerns and attempt remediation;
  • Work toward a happy, open work place culture;
  • Reward employees for their loyal service;
  • Periodically meet one-on-one with supervisors to encourage communication; discuss the “talk” around the workplace to get a “heads up” on staff morale, being ever mindful of disgruntled employees;
  • Try to work with employees to encourage constructive improvements in their work rather than fire them;
  • Provide periodic training to supervisors to avoid any conduct that may appear to be retaliatory;
  • Review and revise Employee handbooks with strong SEC compliance policies and codes of conduct;
  • Make sure SEC compliance is mandatory at all levels of your business/work model.
Filed Under: Whistleblower Retaliation Tagged With: , ,

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.