Whistleblower and Retaliation
Responsible businesses have mechanisms and procedures in place for employees to safely alert an internal independent contact if they believe the business is committing an illegal or unethical activity. This fosters accountability and ultimately saves the company from fines, penalties, class actions or investigative or criminal repercussions when done right. Therefore, such whistleblowers are important not just to the company’s reputation and bottom line, but society as well. Unfortunately, many short sighted or greedy companies will punish whistleblowers and stifle any form of internal complaining and typically are even more punitive when an employee alerts a government or regulatory agency. This is against the law and you need to immediately contact a retaliation or whistleblower attorney at Shalchi Burch LLP.
Below are a few California and federal laws that protect the whistleblower.
Workplace Safety Whistleblower/COVID
The California Occupational Safety and Health Act of 1973 (Cal-OSHA) can be found in Labor Code Sections 6300-6718. Cal-OSHA protects employees who complain about workplace safety. This could include COVID as well. Not all employers are proving safe working environments, personal protective equipment, or enforcing other rules. Employees who make oral or written complaints about workplace safety to the employer or the government, or who institute or testify in proceeding under Cal-OSHA may not be discriminated against, or retaliated against including discharge, demotion, or other adverse working conditions, because of the such complaints. Employees are also protected if they are a relative of such an employee. Employees are also protected if the employer is worried the employee might make a complaint. Employees are also protected if they complain in good faith about working conditions they think are unsafe, or for refusing to perform work in circumstances that violate Cal-OSHA if the “violation would create a real and apparent hazard o the employee or his or her fellow employees.”
Wage and Hour Violation Whistleblower
Labor Code Section 98.6 prohibits employers from discriminating, retaliating, or taking any adverse employment action (termination, demotion, pay cuts, etc.) against an employee or applicant who participates as a claimant, or a witness, in proceedings before the Labor Commissioner, or otherwise exercising his or her rights under the Labor Code.
Whistleblower for Any State/Federal/Local Law or Regulation
Labor Code Section 1102.5 provides the most comprehensive whistleblower protections in California. And now a prevailing plaintiff can recover attorney’s fees as well. Under 1102.5, no employer, or anyone acting on the employer’s behalf, may make or enforce a rule or policy preventing an employee who reasonably believes that a violation of or noncompliance with local, state, or federal laws, regulations, or rules has occurred from informing a government, or law enforcement agency, a person with authority over the employee (such as a supervisor), or another employee who has authority to investigate, discovery, or correct the violation or noncompliance, regardless of whether disclosing the information is part of the employee’s job duties.
Moreover, no employer, or anyone acting on the employer’s behalf, may retaliate against any employee for disclosing information, or because the employer believes that the employee has disclosed, or may disclose information when the employee has reasonable cause to believe that a violation of, or noncompliance with a state or federal statute, regulation, or rule occurred, regardless of whether disclosing the information is part of the employee’s job duties. In other words, the employee can be wrong about the violation. It is still protected if the employee had reason to believe employer was violating the law.
Federal and California False Claims Acts
If a company is defrauding the California or Federal government, the whistleblower may be entitled to a large amount of the amount recovered. The Federal and California’s False Claims Act make it illegal to make false claims to the government. It’s mostly to prevent fraudulent billing.
Sarbanes-Oxley (SOX) Whistleblower – Publicly Traded Companies
The retaliation provision of SOX applies to companies that are required to register with the SEC under Section 12 of the Securities Exchange Act or that are required to file reports under section 15 (d) of the act, as well as privately held companies acting as contractors, subcontractors, or agents of publicly traded companies. A covered employer may not retaliate against an employee for engaging in whistleblowing activities. Employees are protected when disclosing information to a federal regulatory agency, a member of Congress, or a supervisor at work about a potential SEC rule or federal law violation related to shareholder fraud. Protected activities may include some of the following:
● Reporting shareholder fraud
● Reporting mail fraud
● Reporting wire fraud
● Reporting accounting fraud
● Reporting deficient internal controls to management
● Participating in any proceeding filed or to be filed relating to an alleged violation of securities law
● Reporting an employer's nondisclosure of accurate financial statements to potential investors
● Reporting an employer's improper entries on financial statements
● Exposing senior management's alteration of delinquency reports
● Reporting an employer's use of an unregistered broker to solicit investors in exchange for a commission
● Raising concerns about a supervisor's practice of backdating letters of credit.
CALL SHALCHI BURCH LLP NOW
The law is complicated and there are other laws that may protect you in addition to the above. If you think you have been retaliated against for whistleblowing, or your business is facing such claims, please contact an attorney at Shalchi Burch LLP as soon as possible.