California Makes Progress On Anti-Retaliation Laws

In a previous post, we briefly touched on the passage of Assembly Bill 1947 (AB 1947), which California Governor Gavin Newsom signed on September 30, 2020. This new anti-retaliation legislation amends California’s Labor Code regarding employer retaliation against whistleblowers.

The law provides a longer period of time for whistleblowers to file a retaliation claim and allows courts to award attorney fees to whistleblowers. This new and improved anti-retaliation law goes into effect on January 1, 2021.

In this post, we’ll take a look at the basics of whistleblower law and discuss why it’s important to protect those who shed light into the dark corners of unethical and illegal practices in the workplace.

What Is A Whistleblower?

A “whistleblower” is an employee who discloses information about violations or noncompliance with the law to someone with authority to investigate, discover, or correct the violation. These authorities can include a government or law enforcement agency, a supervisor or manager of the employee, or another employee at the same level. It could also be someone who provides information to, or testifies before, a public body conducting an investigation, hearing or inquiry.

To qualify as a whistleblower under the statutes, the employee must have reasonable cause to believe that the information discloses:

  1. A violation of a state or federal statute;
  2. A violation or noncompliance with a local, state or federal rule or regulation; or
  3. Unsafe working conditions or work practices at the employee’s job.

A whistleblower can also be an employee who refuses to participate in an activity that would result in a violation of a state or federal statute, or a violation of or noncompliance with a local, state or federal rule or regulation.

How Does The Law Protect Whistleblowers?

There are many reasons to protect whistleblowers, including the fact that they expose illegal activity and threats to worker safety. One of the major risks that these brave workers face in coming forward is retaliation by their employer. Retaliation can take many forms, including harassment, reassignment, demotion, wage or salary deduction and even termination.

In the state of California, an employer may not

  1. Make, adopt, or enforce any rule, regulation, or policy preventing an employee from being a whistleblower;
  2. Retaliate against an employee who is a whistleblower;
  3. Retaliate against an employee for refusing to participate in an activity that would result in a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation; or
  4. Retaliate against an employee for having exercised his or her rights as a whistleblower in any former employment.

Under California Labor Code § 1102.5, if an employer retaliates against a whistleblower, the employer “may be required to reinstate the employee’s employment and work benefits, pay lost wages, and take other steps necessary to comply with the law.”

Under the existing legislation, whistleblowers have six months after a retaliatory action to file a claim. The newly-approved amendment extends this deadline to one year after the offense occurs, providing the employee with valuable time to find an attorney. The amendment makes this undertaking significantly easier by allowing the recovery of attorney’s fees in any successful suit, which is the other key addition under AB 1947.

Retaliation In Practice: The Los Angeles District Attorney’s Office

A recent example of retaliation comes from the Los Angeles District Attorney’s Office, where a Black employee, Senior Investigator Regina Crenshaw, came forward with allegations of sexual harassment against her Caucasian supervisor dating back to 2015. While the supervisor was reassigned, for the next five years Crenshaw had to endure further harassment from the officer who investigated her supervisor. She was nearly terminated, but was ultimately demoted to menial, entry-level work.

According Scott Schwebke for the Orange County Register and Southern California News Group, after several years in court, the DA’s Office was forced to settle the case for more than $950,000. In fact, the Los Angeles District Attorney’s Office has had to pay out more than $2 million in settlements in four cases since 2017. Without the ability to sue their employer for retaliation, these women would likely have ended up jobless with no recourse other than a difficult-to-prove harassment claim.

Another Step In The Right Direction

The extension of the deadline to file a retaliation claim along with the statutory provision for attorney’s fees is a massive boost for whistleblower protection. As we strive to make the California workplaces more open, transparent, and above all equal, we need to continue to fight for the rights of employees. To learn more about whistleblower law, anti-retaliation, or other employment law issues, please contact us today.