What is a whistleblower?

A whistleblower is an employee who identifies and reports their employer’s illegal activities. Examples of whistleblowing include speaking up about unsafe working conditions; failure to pay all due wages; discrimination or harassment on the basis of race, sex age, disability or other protected classes; accounting fraud; or any other activity that violates the law. Under California law, employees who report illegal acts by a company (or by other employees) to their supervisor, human resources, other managers, or to a government agency, are protected from retaliation such as termination, demotion, cuts in pay or scheduled hours, and reduced levels of responsibility.

It is important that the employee has a reasonable and good faith belief that what he or she complains of actually is illegal. For example, complaining that your boss micromanages you is not as strong a basis for a whistleblower claim, because micromanaging is not, generally speaking, illegal. Even if your employer retaliated against you for making such a complaint, it would not likely give rise to a very strong whistleblower lawsuit. By comparison, if your employer retaliated after you complained of sexual harassment or unpaid overtime, you would be much more likely to have a good whistleblower retaliation case because laws exist that require employers to maintain a workplace free of sexual harassment, and to pay all due wages.

Many workers are hesitant to act as whistleblowers when they witness or suspect misconduct out of fear of losing their job. There is no denying that whistleblowers do get fired sometimes. An employee who files a successful retaliation complaint can obtain lost wages plus damages for emotional distress, and punitive damages if the employer’s actions are especially egregious.

Even if no violation of the law is uncovered, whistleblowers are protected from retaliation as long as their suspicion was reasonable. Whistleblower laws also shield workers from retaliation for refusing to participate in illegal activity.

When an employee alleges whistleblower retaliation, the employer must show that it had a good faith reason for taking action against the employee. For example, if the employer can provide convincing evidence that the employee had severe job performance issues, or that it let the employee go as part of a widespread layoff, then a court might assume the alleged retaliation was for a legitimate business reason. However if the employer does not have a convincing story why it took action against the employee, then it lends credibility to the theory that it retaliated against a whistleblower.

Despite existing legal protections, whistleblowers may still experience retaliation. When they do, they can take legal action. Contact McCormack Law Firm to learn more about your rights as a whistleblower. A San Francisco employment lawyer can advise you of your legal options.

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