Whistleblowers May Still be Protected Even If They Are Not the First to Report a Violation

Under California Labor Code Section 1102.5, an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation, or where the employee has reasonable cause to believe that the information discloses a violation of state or federal law, rule, or regulation. This is one of the potent whistleblower laws in California.

In other words, an employer cannot retaliate against an employee (whether it be, among other things, termination, decrease in hours, suspension, etc.) who reports internal illegal activity to either a government body such as the police or to his or her supervisor. This law applies to just about any employer in California. But what if the employee is not the first to report a violation? What if he or she is the second or even the third employee to report a violation?

First Whistleblower?

In an unpublished California case, an unnamed deputy informed Deputy Sheriff Hager of crooked deputies within the department. The information suggested that another deputy was involved in an illegal drug dealing scheme and was also involved in the disappearance of another deputy. Hager reported this information to his superiors. He was placed on a task force to investigate the drug dealing allegations, but Hager was expressly ordered not to investigate the disappearance of the deputy. However, during the investigation, Hager discovered information regarding the deputy’s disappearance from wire tapped informants. He reported the information to his superiors. The department later fired Hager because he carried out an unauthorized investigation. Hager sued for unlawful whistleblower retaliation.

The county argued that Hager’s report was not whistleblowing because another deputy already reported the same information to the department before Hager. The court disagreed with the county’s argument. The court held that an employee who reports violations (whether it is reported to a government agency or a person with authority over the employee) that were previously reported by another employee are still protected from whistleblower retaliation under Labor Code Section 1102.5. The court reasoned that to adopt a rule that only protects the first employee who reports violations would be against public policy. If the court adopted a “first report rule,” then employees would be discouraged from reporting violations out of fear another employee has already done so. However, the court pointed out that their holding does not apply to employees who report publically known and well-known information as this still does not constitute whistleblowing.

Implication for CA Whistleblowers

So what does this mean for employees in California? It provides employees more protection when it comes to whistleblowing. Employees who report violations after the same violation has already been reported may still constitute whistleblowing. This is also the rule under federal law. Although this is not binding California law because it is from an unpublished case, it nonetheless shows that California may very well be heading in the direction of adopting the federal rule, and it also may show how California courts may rule in similar issues in the future.

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