Whistleblower and Wrongful Termination in California

Unless an employee has an employment contract, belongs to a union, or works in a civil service position, California law usually classifies the employee as an “employee at will.” That means the employer can terminate the employment at any time and for any reason.

There are, however, limits on the employer’s ability to terminate employment. For example, a firing that violates laws prohibiting discrimination is unlawful, even if the fired employee is an employee at will. It is also unlawful to terminate an employee in retaliation for engaging in activities that are protected by labor and employment laws.

Certain terminations of at-will employees are unlawful even if they do not violate labor or employment laws. Those terminations can be generally categorized as firings of whistleblowers and as firings that violate public policy. Collectively, those firings fall under the umbrella of wrongful termination.

Current or former employees who believe they were wrongfully terminated because of whistleblowing or for any other reason prohibited by the laws or policies of California can get legal advice from an employment discrimination lawyer at KKG Law. Our office serves current and former employees in Oakland, San Jose, Fairfield, and all other Bay Area communities.

Whistleblower Terminations

Several federal and California laws protect the right of an employee to report wrongdoing to appropriate officials. In some cases, employers are also protected when they report wrongdoing to their employers.

Reporting wrongdoing is deemed a “protected activity” when the report addresses the kind of wrongdoing specified by a particular whistleblower law. Common examples include reports about:

• Overbilling the government or billing the government for services that were not rendered (such as Medicaid billing)
• Violations of safety standards in a workplace
• Illegal dumping of chemicals or other violations of environmental regulations
• Making fraudulent statements in business tax returns
• Providing false data to the government about product safety
• Providing false test results in support of a government contract
• Violations of securities regulations
• Making false statements to shareholders in a publicly traded company
• Requiring commercial drivers to drive longer hours than the law allows

The California Whistleblower Protection Act protects state employees who report improper conduct by a government official, including bribery, fraud, theft, misuse of property, and other forms of corruption. The law also protects employees who report a refusal to perform a duty required by law, as well as acts of incompetence or inefficiency that waste tax dollars or harm the public.

A similar California law also protects private employees who report an employer’s suspected violation of state or federal law, or an employer’s failure to comply with government regulations, if the report is made to:

• a government or law enforcement agency,
• the employee’s supervisor, or
• any person employed by the employer to investigate the employer’s compliance with the law (typically known as a “compliance officer”).

In addition to unlawful terminations, employers violate California law when they retaliate against the whistleblowing employee or when they attempt to prevent the employee from testifying or cooperating with an investigation of the reported wrongdoing.

There are many different whistleblower laws. Which one applies depends on the nature of the violation that was reported and to whom it was reported. An employment lawyer at KKG Law can help employees understand their rights and the compensation to which they might be entitled if they suffer retaliation for engaging in an act of whistleblowing.

Wrongful Terminations

Wrongful termination is a broad term that covers any unlawful firing of an employee. Firing an employee for whistleblowing in violation of a state or federal law is an example of wrongful termination. Firing an employee in retaliation for reporting a wage and hour violation, for complaining about discrimination, or for participating in legal proceedings relating to discrimination or wage claims, are additional examples.

Other federal and/or California laws make it unlawful to terminate an employee for exercising certain rights or obeying certain duties imposed by law. Examples include:

• Serving jury duty
• Obeying a subpoena to attend a legal proceeding
• Taking a family or medical leave authorized by law
• Requesting an accommodation of a disability or religious practice
• Refusing to participate in racial or sexual harassment
• Reporting for National Guard or Reserve duty
• Engaging in protected union activity
• ‘claiming workers’ compensation
• Having wages garnished by a creditor
• Taking two hours off from work to vote in a public election
• In the case of a large employer, taking up to four hours off per year for school visits

All of those terminations are “wrongful” because a specific statute makes it unlawful to terminate an employee for those reasons. In California, however, certain terminations of at-will employees are wrongful even if no statute prohibits the termination.

California courts will regard a termination as wrongful if the termination violates a fundamental public policy of the State of California that is embodied in the California Constitution, in a state statute, or in certain administrative regulations. Public policies are those that affect everyone in California, not just the employee who is fired.

Wrongful terminations in violation of public policy include firing an employee who:

• Refuses an order to disobey a state law
• Performs a duty that is imposed by state law
• Exercises certain rights protected by a statute or the state constitution
• Reports a violation of the law if the report is intended to benefit the public, not just the employee

Examples of wrongful terminations in violation of public policy include firing an employee for:

• Refusing to sign a sworn statement that is untrue
• Refusing to lie to the police or government regulators
• Reporting a daycare center’s child abuse to a state agency if the employee is a mandatory reporter of child abuse
• Reporting nursing home abuse or substandard care if the nursing home employee is required by law to make such reports
• Applying for unemployment benefits during a layoff
• Refusing an employer’s order to submit to a polygraph examination

Public policy may also support a constructive discharge claim. For example, if an employer responds to an employee’s refusal to commit a crime by constantly harassing the employee at work, and if the employee feels forced to quit rather than continue to endure the harassment, a constructive discharge in violation of public policy has occurred.

Remedies for Wrongful Termination

Remedies for wrongful termination depend on whether the termination violated a specific law or public policy. In appropriate cases, remedies might include:

• An award of back pay
• Reinstatement to a former position
• An award of future pay in lieu of reinstatement
• Compensation for emotional distress
• Punitive damages

An employment lawyer at KKG Law can help employees understand the remedies that might be available for a wrongful termination. We represent wrongfully terminated employees in all Bay Area communities.