Whistleblower Employees Enjoy Broader Protection From New Labor Code 1102.5 Amendments and Court Interpretations

         Fit Row, Uncategorized

California employees can now report their employers’ illegal activities with greater safeguards against retaliation.  Several amendments and a Ninth Circuit interpretation of Section 1102.5 broadens the scope of whistleblower protection.

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In 2014, the California legislature passed an amendment to California Civil Code Section 1102.5.  The amendment allows the whistle blower statute to apply “regardless of whether disclosing the information is part of the employee’s job duties.” Cal. Labor Code 1102.5 (b). This allows employees to receive whistleblower protection for reporting legal violations when such reporting is part of the employee’s job duties.  Previously, whistleblowers could only receive protection under Section 1102.5 if reporting the illegal activity was outside of their job duties.  In Lukov v. Schindler Elevator Corp., 594 F. App’x 357, 358 (9th Cir. 2015), the Ninth Circuit applied this new amendment to an elevator mechanic who was terminated after reporting an unsafe elevator to his employer. The Lukov court acknowledged that although the California Supreme Court has not addressed the issue, state appellate courts have refused to extend the federal “step outside of his role” rule to California wrongful termination claims. See, e.g., McVeigh v. Recology San Francisco, 213 Cal.App.4th 443, 152 Cal.Rptr.3d 595, 617 (2013); Storm v. Thrifty Payless, Inc., No. B228091, 2011 WL 6004447, at *10–11 (Cal. Ct. App. Dec.1, 2011) (unpublished opinion).

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Previously, Section 1102.5 only protected the first employee who reported his or her employer’s misconduct. This is known as the “first report” rule.  However, a recent California Court of Appeals decision holds that subsequent whistleblowers, no matter how many employees have reported before, are protected under the anti-retaliation provision of Labor Code § 1102.5. Hager v. City. of Los Angeles, 228 Cal. App. 4th 1538, 1549 (2014).   In Hager the court saw the first report rule as discouraging whistleblowing as well as a contradiction to the purpose of § 1102.5.  This decision will create a stronger voice for whistleblowers within the same company.  Additionally, it will deter employers from retaliation when the employer knows the employee was not first in reporting a violation.

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In 2016, the California legislature passed AB 1509, which extends anti-retaliation protection to the whistleblower’s family by amending Labor Code 98.6, 1102.5, 2810.3, and 6310.  The new legislation protects whistleblowers who are family members of a, “person who engaged in, or was perceived to engage in, the protected conduct or make a complaint protected by these provisions.” California Assembly Bill 1509.

This provision is particularly important for immigrant employees whose families often work together. AB 1509 (Hernández): Strengthening Retaliation Protection for the Subcontracted Economy,  Additionally, immigrant workers also make up the majority of workers in the subcontracted economy.  Such retaliation must be prohibited to ensure that workers can speak out about unlawful practices without fear of reprisals against family members. Id.

About the Author: Steve Rubin represents California employees with claims for discrimination, state and federal whistleblower retaliation, wage and hour violations, sexual harassment, violations of the Family and Medical Leave Act, wrongful termination, and defamation, as well as contract breaches.