Are You Listening For (And To) The Whistleblower?
As employers reopen their doors and employees return to work, all involved are likely to have concerns about the impact, and risk, of COVID-19 in the workplace. Hand washing is being encouraged, the acrylic barriers have been installed, and you are ensuring that your employees are keeping proper social distancing protocols. But some employees may be uncomfortable with whether these changes are compliant or sufficient, and voice a concern. Is a worker who vociferously raises a concern about these perceived deficiencies a hero or a troublemaker? While it may be tempting to want to dismiss employee complaints (and even the employee), you could be faced with a much bigger problem by doing so – a whistleblower lawsuit.
California whistleblower law provides powerful protections for employees working in the Golden State. There are a number of different whistleblower laws that protect workers and among these is California Labor Code Section 1102.5. Subsection (b) states: “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has the authority to investigate, discover or correct the violation or noncompliance…”
Other whistleblower protections are found in the California Health and Safety Code, as well as in a variety of federal laws and provide cover for a wide range of situations. These could include reports of:
- Patient endangerment
- Workplace safety
- Tax evasion
- Medicare fraud
- Refusing to violate a statute
- Exercising a constitutional right or privilege
- Overtime wage law violations
- Anti-trust violations
- Securities fraud
- Violations of workplace safety
- Workplace harassment
In order to prevail on a whistleblower claim, an employee must generally show the following: (1) there was an employee-employer relationship between the plaintiff and the defendant; (2) an adverse employment action was taken against the plaintiff (such as termination, demotion, threats, coercion, or any other act of reprisal); and (3) the employee’s protected conduct was a substantial factor in the employer’s decision to take the adverse employment action. If successful, an employee can recover compensation for lost wages and benefits, punitive damages, and attorney’s fees.
Here are our tips for staying out of hot water:
- Implement and enforce clear anti-retaliation policies that are broad enough to encompass applicable laws;
- Ensure proper training and support for managers, supervisors, and human resources professionals to administer these policies;
- Adequately investigate employee complaints and include prompt follow-up with the employee and documentation of the results;
- Maintain confidentiality of employee complaints and other sensitive personnel issues to the extent possible;
- If appropriate, implement corrective measures and communicate with the employee regarding the results of the investigation; and
- Do not ask the employee to maintain confidentiality regarding their concerns.
Hero or troublemaker? That may depend on management perception and inappropriate instinctual biases. An employee concern should never be dismissed outright. Sometimes those with proverbial “boots on the ground” can provide a somewhat different (and valuable) perspective than those who must necessarily focus on the bigger picture. It’s quite possible that your employee may be providing you with an opportunity to correct a potential looming undisclosed problem. As we like to say, “It’s good for you, it’s good for your employees, and it’s good for your bottom line.” For more information or to discuss any of your employment concerns, please contact our employment attorneys at Hall Griffin LLP.