Category Archives: Whistleblower

New Whistleblower Whiteboard Video

Branigan Robertson just finished filming a video on whistleblowers. This video can also be found on our whistleblower page, which gives a comprehensive overview of California law. We hope you find this helpful!

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January 28, 2017 · 9:22 am

Employers Cannot Retaliate Against Employees For Reporting Violations of Law

Unfortunately, retaliation at work is still a widespread occurrence throughout California. Many employers do not know the law, so it is no surprise when an employee refuses to participate in an illegal activity or reports a violation of law, the employer retaliates against the employee for being “insubordinate.” So what is retaliation?

Retaliation is when an employer takes adverse action against an employee for reporting or opposing an illegal practice in the workplace. Adverse action by the employer can occur in the form of a demotion, a cut in pay, a decrease in hours or a termination. There are many things that are illegal or violation under California law such as a nurse reporting patient abuse by other nurses, an accountant refusing to cook the books, or a worker reporting wage and hour violations by his or her employer.

Michael Marlo v. United Parcel Service, Inc.

Michael Marlo v. UPS is a great case example of retaliation in the workplace. Plaintiff worked for UPS for over twenty years. At some point in during his time working for UPS, he filed a class action lawsuit alleging wage and hour violations. The class action failed though and he ended up pursuing an individual wage and hour claim. In the same year he filed his individual claim, plaintiff would encourage his co-workers to file their own wage and hour claims against UPS. Over fifty UPS workers filed individual wage and hour claims. In the same year, plaintiff was terminated.

Plaintiff argued that UPS retaliated against him for reporting wage and hour violations in the workplace. Further, plaintiff argued that the reasons stated by UPS for his termination was just a pretext to get rid of him as UPS viewed his lawsuits and discussions with co-workers as a distraction in the workplace. Defendant argued that plaintiff was fired due an incident that occurred with a customer in the same year he filed his individual lawsuit. Defendant further argued that plaintiff broke numerous policies, and that is why he was fired.

Companies Will Be Held Accountable For Unlawful Conduct

The jury in Michael Marlo v. UPS sided with the plaintiff and awarded the plaintiff with over $18 million dollars in damages. The jury was not convinced that the real reason plaintiff was fired was due to an incident with a customer. This case is a classic retaliation case (but the damages ended up being extremely high). Plaintiff opposeed violations of law, and even filed multiple lawsuits while he was still working there. In the same year as one of his lawsuits, the company fired him after twenty-two years of great service. The facts on their face pretty much scream retaliation.

If you have worked for an employer for many years and recently reported or opposed illegal activity, and now your employer is retaliating against you, call a whistleblower lawyer for a free consultation. You can also visit our retaliation page here.

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Protecting Medical Professional Whistleblowers

It is the public policy of California to encourage patients, nurses, doctors and other members of health facilities to speak up against suspected unsafe patient care and poor health facility conditions. It is still very common for members of health facilities to witness first hand poor patient treatment and poor patient conditions. Therefore, California has passed a unique whistleblower law, Health & Safety Code 1278.5, for medical professionals.

Basically, under 1278.5, it is unlawful for an employer of a health facility to retaliate against any patient or employee of the health facility for complaining or reporting (blowing the whistle) unsafe patient care or poor patient conditions to the employer. Employment attorneys like Mr. Robertson are there to ensure that health facility employers are held accountable under this law.

Recent Verdict – Cancer Patients and Bad Surgeons Lead to Whistleblower Complaint

In a very recent case out of the California judicial system, Wascher v. Southern California Permanente Group, plaintiff was a surgeon who worked for defendant from 2009 to 2011. During his employment, plaintiff complained about unsafe patient care to the defendant. Plaintiff made the following complaints to his employer: access to surgery for cancer patients took too long and unqualified surgeons were handling cancer cases that they should not be handling. In response to his complaints, rather than addressing the plaintiff’s legitimate complaints, the defendant barred him from becoming a partner. Plaintiff hired an employee rights attorney to protect his rights.

Plaintiff argued that he was retaliated against for complaining about unsafe patient care in the workplace. Defendant argued that the plaintiff was not barred from becoming a partner because he was not a good fit. Defendant also argued that he did not make complaints, but asked for certain preferences that would benefit himself as a surgeon. The jury was not convinced by the defense and sided with the plaintiff. The jury awarded plaintiff $1,750,000 for retaliation under Health & Safety 1278.5.

This case was a huge victory for employees of health facilities, whether it be doctors, nurses, o medical staff assistance. Wascher v. Southern California Permanente Group reinforces California’s policy of encouraging members of health facilities to speak up against suspected unsafe patient care and poor health facility conditions. This is a very important law as it not only protects employees who act as patient advocates, but also protects the pateints themselves to ensure that Californians are treated in a safe and clean health facility. If you are an employee of a health facility and you feel that you have been retaliated against for reporting unsafe patient conditions or acting as an advocate for patients adverse to your employer, then call an employee rights attorney immediately.

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Health Care Whistle Blower Employment Lawyer

One of the types of whistleblowers employment lawyers protect are employees who report unsafe patient care and conditions. The California Legislature has passed some special whistleblower laws for medical professionals and medical staff. In California, it is public policy to encourage doctors and other health care workers to report suspected unsafe patient care and conditions. Ultimately, the California Legislature wants to protect patients.

Unfortunately, medical professionals and medical staff witness poor patient treatment in the workplace all the time. That is why CA Health & Safety Code 1278.5 was enacted. Basically, Health & Safety Code 1278.5 provides that no employer shall discriminate against an employee, member of the medical staff, or other health care worker of the employer for presenting a complaint or report to the employer, or medical staff, or other governmental entity.

Suing On Behalf of Doctors, Surgeons, & Nurses

In Pedowitz, M.D. v. The Regents of the University of California, et al., plaintiff was the Chair of UCLA’s Department of Orthopaedic Surgery. During the first year of employment, plaintiff reported conflicts of interest between UCLA medical professionals and outside medical third parties which plaintiff believed negatively affected patient care and safety. Less than a year into his position as Chair, he was asked to resign. Plaintiff hired an employment lawyer to sue his former employer.

Plaintiff claimed that his removal as Chair was directly due to his reports of various conflicts of interests between doctors and third party medical companies which had the potential to gravely affect patient care and safety. Defendant argued that plaintiff was asked to resign due to his poor leadership skills and his poor communication with colleagues.

The trial lasted two long months. Although there was no jury verdict, there was a $10,000,000 settlement which occurred at trial immediately before closing arguments. The fact that the defendants settled for such a high amount right before closing arguments implies that the case was not boding well for the employer. Defendants must have feared a potential hefty verdict against them in favor of the plaintiff.

Employment Lawyer Against Hospitals and Medical Executives

It never looks good to a jury or any outside observers when an employee is fired for reporting unsafe patient care and conditions, and Pedowitz, M.D. v. The Regents of the University of California, et al. is a testament to that. If you have reported unsafe patient care conditions or care, and believe that your employer has retaliated against you, call an employment attorney immediately.

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California Law Protects Perceived Whistleblowers

Whistleblowing occurs when a company employee reports violations of law, safety violations, or even refuses to violate a law. If an employee “blows the whistle,” an employer is prohibited under California law from retaliating against the employee. But is an employer prohibited from retaliating against an employee if the employer mistakenly believes that an employee is a whistleblower? The court in Diego v. Pilgrim United Church of Christ directly confronted this issue.

In Diego v. Pilgrim United Church of Christ, Plaintiff sued her former employer for wrongful termination in violation of public policy. Plaintiff’s supervisor believed that Plaintiff made an anonymous complaint to social services regarding poor health conditions of the classrooms and playground. Plaintiff was terminated after only two days of the supervisor believing that Plaintiff reported the conditions to social services. Employer argue that Plaintiff was terminated for insubordination when in fact Plaintiff was terminated based on the employer’s mistaken belief that she filed a complaint with a government agency.

The trial court entered judgment for the employer, and Plaintiff appealed. The appellate court reversed, and found that the employer was prohibited from terminating the Plaintiff. The court held that perceived whistleblowers or employees that are mistakenly believed to be whistleblowers are protected from retaliation. The court stated that it is public policy to encourage employees to report violations of law in the workplace without fear of retaliation. The court reasoned that to allow termination of a perceived or suspected whistleblower would be counter to public policy and actually discourage employees from reporting violations in the workplace.

At the end of the day, California law protects perceived and suspected whistleblowers from retaliation by their employer. With that said, an employer cannot wrongfully terminate an employee if he believes the employee reported a violation of law, even if the employer’s belief is mistaken and the employee never even reported the violation of law. If you think you were fired as a suspected or perceived whistleblower, contact our employment attorney for a free consultation.

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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 violations.

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 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. If you feel like you need to consult with a employment attorney about a employment situation, contact our office today.

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Case Law: Khajavi v. Feather River Anesthesia Medical Group – Whistleblower Protection for Doctors

Attorney Case Law Update: Khajavi v. Feather River Anesthesia Medical Group – California Court of Appeal. Branigan Robertson is a California employment lawyer who focuses his practice on healthcare whistleblowers, wage and hour issues, sexual harassment, retaliation, and wrongful termination. Contact the firm for a free consultation.

Facts of the Case:

While prepping a patient for anesthesia, Dr. Khajavi noticed that the patient had an irregular heartbeat which increases the risk of stroke to a patient during and after surgery. Dr. Khajavi asked the surgeon about the patient’s irregular heartbeat and the surgeon told him that it was nothing new and the patient was being treated for it. Relying on this, Dr. Khajavi proceeded with administering the sedative.

Before the surgery began, Dr. Khajavi spoke with the patient’s regular physician, who informed him that the patient had not been treated for an irregular heartbeat and directed Dr. Khajavi to cancel the surgery.

Dr. Khajavi and the surgeon had a heated argument as the surgeon wanted to proceed with the surgery and Dr. Khajavi did not was to proceed with the surgery. Dr. Khajavi refused to attend the patient during surgery as it was not in the best interest of the patient to proceed with the surgery. The surgery was canceled as there was no other anesthesiologist to monitor the patient.

Four days following the incident, Dr. Khajavi was terminated. Shareholders told Dr. Khajavi that the incident was one of the main reasons for his termination. Dr. Khajavi filed a lawsuit asserting that the hospital, had violated Business & Professions Code § 2056 which protects doctors from retaliation for advocating for medically appropriate care.

Continue reading “Case Law: Khajavi v. Feather River Anesthesia Medical Group – Whistleblower Protection for Doctors” »

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