When an employee discovers that his or her employer is engaging in an activity or conduct that is against the law, an employee is often torn between doing the right thing—reporting the illegal conduct—and the fear of losing their job. However, California law prohibits employers from terminating an employee who reports an employer’s unlawful conduct.
What laws protect employees who report their employer’s illegal conduct?
One of the most important laws protecting whistleblowers is California Labor Code section 1102.5. This section prohibits employers from retaliating against an employee for:
Disclosing information to a government agency, or law enforcement agency, or to a person with the authority over the employee or an employee with authority to investigate or correct the legal violation or noncompliance with a local, state, or federal law or regulation.
Providing information or testifying before any public body that is conducting an investigation, hearing, or inquiry into the legal violation or noncompliance with a local, state, or federal law or regulation.
Refusing to engage in conduct the employee reasonably believes is a violation or noncompliance with a local, state, or federal law or regulation.
Labor Code section 98.6 protects employees who report Labor Code violations (e.g., failure to pay minimum wage) to the Labor Commissioner.
Labor Code section 6310 protects whistleblowers who disclose to a government agency any unsafe working conditions or report a work injury or accident.
What type of reports are not covered by Labor Code section 1102.5?
Generally, the disclosure of policies that an employee believes are merely unwise, wasteful, gross misconduct, or unprofessional are not protected. To be protected under section 1102.5, an employee must reasonably believe that the information he or she is disclosing violates a local, state, or federal law. Thus, an employee will be protected under section 1102.5, even if the employee mistakenly believes that what he or she is reporting is a violation of the law.
Is an employee who discloses violations of the employer’s policy manuals or employee handbook protected under section 1102.5?
Generally no, unless the policy is complying with a local, state, or federal law. An employer’s handbook or its policies are not the law. Thus, reporting that an employer that is violating its own policies is generally not a protected activity under section 1102.5. However, there are instances where an employer’s policies are complying with California laws, and therefore, reporting such a violation would constitute protected activity. For example, if an employee reports that his or her employer is not paying earned vacation (in violation of the employee handbook or offer/hire letter) or that the employer is not paying for all the hours worked then reporting such violation would be protected.
If you need help assessing whether your employer’s refusal to follow its own policies is a violation of California law, contact our office for a free consultation.
What is the deadline to file a lawsuit for violation of section 1102.5?
Employees have 3 years from the last act of retaliation or termination to file a lawsuit under section 1102.5.
DISCLAIMER: This page is available for educational purposes only. The information provided in this page is to give you a general understanding of the law and not to provide specific legal advice. By using this page you understand there is no attorney-client relationship between you and Jimenez Loayza, APC. You should not substitute this page for competent legal advice from a licensed attorney, as the fact of your case may vary significantly.