The California Supreme Court has clarified the law surrounding the burden of proof in whistleblower retaliation claims. Keep reading for more information.
What Is a Whistleblower?
The most basic definition of a whistleblower is someone who reports insider knowledge of illegal or unethical practices that occur within an organization in which they work or are associated with. A whistleblower may come in contact with confidential or insider information that could violate company ethics or violate state or federal law. When that person decides to expose the information, they become a whistleblower.
Since the rise of whistleblowers and their role in exposing illegal business practices and exploitation, federal agencies have begun protecting whistleblowers from retaliation. These agencies protect different aspects of the issue and offer different safety nets for whistleblowers.
What Protections Are Offered to Whistleblowers?
OSHA or the Occupational Safety and Health Administration focuses primarily on environmental and safety breaches while other agencies like the Securities and Exchange Commission (SEC) handles securities law violations. Overall, most agencies concerned with protecting whistleblowers, offer rewards for information, protection of anonymity, and methods for information submission.
Rewards include compensation for reporting illicit activities. This compensation may be a percentage of the dollar amount recuperated in the process of prosecuting the crime. There is a minimum amount required from each case for a reward to be granted to the whistleblower and the amount may vary between cases.
One of the most meaningful protections is anonymity. Reporting illegal activity comes with tremendous risk. People could lose their jobs, face retaliation, be un-hirable within their field, etc. Anonymity offers a shroud of protection for whistleblowers that can help them recover their careers after the fact.
Other protections include:
- Employers cannot make, adopt, or enforce any rules, regulations, or policies that prevent whistleblowers from reporting
- Employers cannot retaliate against whistleblowers
- Employers cannot retaliate against an employee for refusing to participate in illicit activity that violates federal or state law
- Employers cannot retaliate against an employee for exercising their rights as a whistleblower and former employee
While these protections are welcomed, the question remains, why are they necessary?
What Are Common Retaliatory Actions Against Whistleblowers?
Retaliation or adverse action includes measures to limit and/or punish those who choose to alert officials of illegal practices in their company. These measures are intended to hurt or harm employees professionally and cripple their future opportunities within the company or with other businesses in the same industry.
For example, blacklisting is a method used to obstruct a whistleblower’s ability to obtain future employment. A company blacklists an employee by interfering with their efforts to find other employment opportunities. The company may spread harmful rumors about the employee or use their professional network against them.
Other retaliatory actions include:
- Overtime and/or promotion denial
- Failure to hire or rehire
- Disciplinary action
- Reassignment to a less desirable position
- Reduction of pay and bonuses
- Constructive discharge: quitting when an employer makes working conditions hostile
- Reporting the employee to police or immigration authorities
What To Do If You Are Facing Retaliatory Action for Whistleblowing
If you are facing retaliation for whistleblowing, you can file a complaint with the SEC and federal government. The Dodd-Frank Wall Street Reform and Consumer Protection Act expands protections for whistleblowers to cover retaliatory efforts.
Additionally, Commission Rule 21F-17(a) prohibits actions against employees for reporting illegal activities and opens the door for whistleblowers to report adverse action. Whistleblowers at risk for retaliation may submit a tip to the SEC’s Tips, Complaints and Referrals Portal.
How the CA Supreme Court Decision Affects Whistleblower Cases
The California Supreme Court decision will clarify the standards necessary to prove whistleblower claims. In most cases, the burden of proof rests with the party that passes the McDonnell Douglas Test. This three-part test shifts the burden between plaintiff and employer by requiring the plaintiff to establish a case on the “preponderance of the evidence” and then shifting the burden to employers to dispute the plaintiff’s claim. If the employer is successful, the employee has no choice but to show that the employer’s case is based in discrimination or retaliation.
The new decision would acknowledge the lack of efficacy of the McDonnell Douglas test especially in cases where there are multiple reasons for challenging adverse action. To put it simply, the Court ruled that plaintiffs do not carry as significant a burden to poove unlawful retaliation regardless of any legitimate factors in their case. Not only does this make the claims process easier, but it could also improve the success of claims cases for whistleblowers.
Your Whistleblower Advocates
At Badame Law Group, APC, we believe in upholding the law as it applies to the protection of employees and their right to report illegal actions. Our firm has assisted countless employees with their claims and we are passionate about protecting our clients from retaliation.
If you are facing retaliation for reporting illegal or unethical practices in the workplace, contact our whistleblower defense attorneys at Badame Law Group, APC.