How Are Whistleblowers Protected by Law in California?

It’s important for employees to stand up to unethical or illegal activities in the workplace. Unfortunately, the pressure to keep silent is often overwhelming. Whistleblowing is the right thing to do but sometimes doing the right thing has unexpected emotional and financial consequences.

Some employers terminate employees or make it difficult to resume their careers elsewhere. Others simply make the workplace environment uncomfortable. The California Whistleblower Protection Act prohibits these retaliatory actions. If an employer continues their punitive behavior, the CWPA gives employees legal rights to make a claim against them.

If you are a whistleblower retaliation victim, you understand that the legal issues are often complicated. It’s critical to consult with a legal professional who will stand up for your legal rights. At Perkins Asbill, we believe that every employee deserves professional legal representation. For over three decades, our attorneys have provided legal assistance for employees of all backgrounds and industries.

Whistleblowers Provide an Important Service

Whistleblowers often jeopardize their careers, peace of mind and financial security to do what’s right. They do it to benefit fellow workers, citizens, and consumers and to preserve their own integrity. Past whistleblowers have revealed corporate secrets that changed the way we see cigarettes, vehicles, pharmaceuticals, and other products. They have revealed government overspending and drawn attention to nuclear power plant safety. The media regularly shares whistleblower stories. They show how courageous employees play an important role in keeping employers and organizations honest and citizens safe.

  • Integra Med Analytics is using a different approach to whistleblowing. They aren’t government employees, but they used data analytics to uncover potential Medicare Fraud. Their discoveries give them the authority to file a qui tam lawsuit under the federal False Claims Act. They are making claims in both California and Texas under a federal statute which became effective during the Civil War. California has a similar False Claims Act. It spells out recovery rights for those who report Medicaid fraud.

The California Whistleblower Protection Act

California Government Code, Chapter, 6.5, Article 3. California Whistleblower Protection Act [8547 – 8547.15] provides protections for state employees and those conducting business with the state. It covers people employed directly by the state, California University, and California State University. It also covers contractors, job applicants, and clients seeking state services. The act was designed to encourage employees and others to feel free to report “…waste, fraud, abuse…” and other unethical or illegal acts.

The CWPA makes it illegal for a public employee to directly or indirectly use “…official authority or influence…” in an attempt to interfere with rights granted by the act. A person in authority cannot attempt to control or influence an employee or other party through intimidation, coercion, retribution or other threatening behaviors. The act also prohibits employers from recommending or devising reprisal actions or ordering others to take actions on their behalf. Prohibited behaviors include inappropriate handling of personnel-related processes such as:

  • Appointments
  • Promotions
  • Transfers
  • Assignments
  • Performance evaluations
  • Suspensions
  • Disciplinary actions

Making a Claim

The California State Auditor investigates all state employee Whistleblower Act claims. The office holds a wide spectrum of investigative powers over most state offices, departments, bureaus, boards, and commissions, and executive and judicial branches. Their investigative responsibilities include:

  • Elected constitutional officials
  • Appointed state officials
  • Civil service employees

The auditor’s office has no power to investigate state senators, assemblymen, legislative staff; local and federal government agencies and employees; or private businesses, entities, and nonprofits.

The Auditor Makes Recommendations Only

The state auditor investigates cases involving embezzlement, conflicts of interest, improper overtime, and other inappropriate actions. They have investigative powers only.  The independent investigators who handle these cases maintain each employee’s confidentiality throughout the process. A whistleblower may report an incident anonymously if they choose.

If the auditor’s office finds that a report has merit, they take one of several actions.

  • Make a report to the involved agency
  • Make a confidential report to the Attorney General, a criminal law or administrative law enforcement agency, or a licensing agency
  • Publish a public report

Making a Claim for Retaliation Damages

To make a formal claim for reprisal, threats, coercion or other retaliative actions, you must file a complaint and a sworn statement with your supervisor, manager, or appointing power. You must also file your complaint with the State Personnel Board. In addition to the state’s internal process, you have a right to file a lawsuit for damages. Courts award punitive damages under certain circumstances.  If law enforcement authorities find the offender guilty of retaliatory acts against you, punishment may include a fine of up to $10,000 and imprisonment of up to one year in jail.

Additional Whistleblower Rights

As a Californian, you have protections under a network of state and federal laws.

These and other laws protect employees and designated individuals from retaliatory acts when they report unethical or illegal activities. Some statutes include provisions for back wages and job reinstatement. Others allow additional damages and incentives as a reward for blowing the whistle and revealing inappropriate behavior.

Employment Lawyers in Sacramento, California

Employers and others in authority do not have a legal right to punish you for reporting improper conduct. If you are a retaliation victim, you may have a right to make a whistleblower claim. To secure your rights, you must comply with the appropriate laws, filing processes, proof requirements, and timeframes. It’s important to consult with an employment attorney immediately.

To learn more about your legal rights, Contact Perkins Asbill at 916-446-2000 or complete our Intake Form. Let us schedule a consultation meeting to determine if we can help you.

WHISTLEBLOWER AWARDED $631,200 IN MEDICARE FRAUD CASE

A respiratory therapist in Fresno County was working at a sleep medicine center when she noticed what she believed to be Medicare fraud happening at the facility. She decided to speak out, becoming a whistleblower and exposing the scheme. As a result, she was fired from her job.

She ends up with the last laugh, though, as the case recently went to court and the jury decided to award her $631,200.

The case itself was fairly simply. The woman was not a doctor, but did have a respiratory care license. The company, which worked with people who had breathing problems like sleep apnea, told her to do the in-person evaluations. These were supposed to be done by a doctor, and she wasn’t licensed to do them. When the company billed Medicare, they then claimed that doctor visits had been done, adding significant additional costs, even though she had done those visits.

The woman eventually made her complaint and refused to do the evaluations. That’s when she was fired.

It is worth noting that the investigation did not find fraud, but did determine that the company had been over-billing. The center then had to reimburse Medicare.

However, since they had fired the 51-year-old woman for refusing to break the rules and bringing the over-billing to light, the jury decided that constituted an illegal retaliation. As such, she was given $500,000 in punitive damages and another $131,200 for emotional and economic damages.

The law has many protections for whistleblowers, and it’s critical for employees to know exactly what these are. Many are nervous to make reports for fear of losing their jobs, but this case shows that there are still legal options after a job termination.

Source: The Fresno Bee, “Medicare fraud whistleblower gets $631,200 from Fresno County jury,” Barbara Anderson, Nov. 04, 2016

5 FAQS ON WORKPLACE RETALIATION AND WHISTLEBLOWER PROTECTIONS

Most employment in the U.S is at “at will.” An employer can generally fire an employee at any time, unless there is a contract that requires the employer to show good cause.

There are, however, important exceptions to this general rule. In those cases, a fired employee may be able to sue the employer for wrongful termination.

In this post, we will use a Q & A format to discuss these exceptions.

What if illegal discrimination led to the firing?

Employers cannot fire someone based on certain illegal reasons, including discrimination based on race, religion, age or gender.

Under federal law, firing on these reasons is illegal and employees have certain protections against wrongful termination.

Do some states go even farther than federal law in providing protection?

Yes.

In California, a state law contains important protections for whistleblowers who report violations of the law by an employer to either internal or external authorities. Employers are not allowed to prohibit such reports.

California law also prohibits an employer or its agents from retaliating or taking punitive action against an employee who refuses to violate legal requirements.

Give an example of how this might play out.

A director-level manager in California wants a female worker fired because the worker is supposedly too unattractive. When the female worker’s first-line supervisor refuses to do it, the manger terminates the supervisor too.

This is not allowed under California law. Indeed, California law even has certain protections for job applicants against discrimination based on appearance.

Can whistleblowers who report wrongdoing by their employers earn financial awards?

Yes, in certain cases. The Internal Revenue Service has a whistleblower program to provide financial incentives for the disclosure of tax evasion. The Securities and Exchange Commission has a similar program for reporting fraud and other illegal conduct.

Can an employee who seeks whistleblower protection after making an internal report within his or her company still be fired?

That question will be considered by the U.S. Supreme Court in an upcoming case out of San Francisco. The case involves an employee of a trust company who was fired after reporting fraud to his company’s internal authorities concerning a manager who concealed certain expenses.

The company is arguing that whistleblower protections in the federal Dodd Frank Act do not apply because the employee did not report the conduct fraudulent conduct to the SEC.

5 TIPS FOR WHISTLEBLOWERS BEFORE THEY ACT

Are you really ready to blow the whistle on your employer’s illegal activities?

It’s time to have a good, hard look at what you’re about to do and make sure that you’ve taken all the steps you can to secure your own future before you take action:

— Be smart: Start gathering both the evidence you need to prove your case and the evidence you need to protect your job. Get all of the evidence you can, electronic or otherwise, that will support your case. Remember that the burden is on you to show that your employer is likely doing something illegal — the government won’t investigate based on your allegations alone.

— Don’t break the law while you’re gathering evidence: For example, logging into your supervisor’s computer while he or she is at lunch because the password is written in plain view is still breaking the law, even if your purpose is noble. You can end up suffering legal sanctions and serious credibility issues if you’re breaking the law in order to report lawbreaking.

— Recognize that your job is at risk: One study indicated that 74 percent of whistleblowers are fired, despite laws designed to protect them from retaliation. In order to protect your future, gather up every scrap of evidence that you have that you have been a valued employee over the years including awards, performance evaluations, attendance records, emails that praised your work and so on. Don’t walk away empty-handed in case you need to search for a new job.

— Keep records: Write down everything that is said, done or witnessed. Write down who was present when anything important happened and when it happened. Try to keep a factual account of events both before and after you blow the whistle.

— Get an attorney — quickly: Remember that time is the enemy when it comes to whistleblower cases. The financial incentives, while perhaps not the primary reason you’re acting, are considerable and can help compensate you for all the turmoil your about to go through — but the incentives are only given to the first person to inform on a company. Anyone who follows after is out of luck.

Source: Workplace Fairness, “Blowing the Whistle – Practical Tips,” accessed March 24, 2017

WHISTLEBLOWERS ARE OFTEN PORTRAYED AS MENTALLY ILL IN RETALIATION

Whistleblowers have to have a lot of courage to step forward and expose the ugly underside of their employing institutions—and most do so knowing that they’re likely to be called everything from a turncoat to a tattletale.

However, it tends to take even the most emotionally prepared whistleblower by surprise when they’re suddenly labelled “mentally unstable” by their employer—the same employer that’s always treated them as valued employees before that point.

Unfortunately, a study commissioned by the Association of Chartered Certified Accountants that looked at the real-life experiences of 25 whistleblowers found that accusations of mental illness were a common method of retaliation.

The accusations often came alongside more ordinary forms of retaliation, including things like pay cuts, negative performance reviews, transfers to less desirable positions or locations, demotions and dismissals—but they may have ultimately done more damage than those forms of retaliation ever did.

Whistleblowers in the study were often portrayed as mentally ill in order to cast doubt on their claims. Those who stayed in their positions were often forced by their company to take mental health counseling treatment, even if they didn’t want or need it. Organizations often used the mental health allegations to try to divert attention away from the company and throw the focus on the credibility of the whistleblower instead.

Perversely enough, the accusations often worked on their targets. Some of the whistleblowers in the study became demoralized, feeling such intense pressure by the accusations that they ultimately did develop depression, panic attacks and drinking problems.

The study further indicates that there’s a lot of work to be done in order to give whistleblowers the sort of protections that they’re entitled to under the law. According to global fraud and risk reports, whistleblowers are the most effective method of exposing fraud, so they are valuable assets that deserve those protections.

Until those protections are realized, however, anyone who is thinking about taking the brave step forward to expose an institution’s wrongdoings should consider talking to an attorney before they start.

An attorney can advise you about your rights as a whistleblower, help you make sure that you properly document any retaliation attempts, and work to protect your reputation and career. For more information on how our firm may be able to help you, please visit our page.

3 THINGS YOU SHOULD KNOW ABOUT QUI TAM ACTIONS

A qui tam action is a type of civil lawsuit brought by a private individual, alleging that an individual or business has been defrauding the government. It’s made possible through the The False Claims Act, and it encourages private citizens with information about fraudulent activity to act as whistleblowers through considerable financial incentives.

If you are considering stepping forward with information about fraud against a federal program or agency, there are some important things you should consider.

— What should you do first?

Anyone considering blowing the whistle against their employer or another business should find an attorney who handles whistleblower actions. Your attorney can help you proceed in the action and provide you with necessary advice each step of the way in order to protect yourself against retaliation.

For several reasons, it’s important discuss your decision to file only with your attorney:

— You decrease your chances of experiencing retaliation

— You improve your chances of receiving the award, because only the first person to file is eligible for the financial reward

— Once the action is filed, it is placed under a judicial seal for a minimum of 60 days in order to allow the Department of Justice to investigate, and you are legally prohibited from even mentioning its existence

— What happens after the Department of Justice is notified?

The Department of Justice will begin its own investigation into your allegations. It isn’t unusual for multiple extensions on the seal to be asked for and granted while a complex case is investigated.

How much evidence you are able to bring to the table can greatly affect the government’s ability to successfully prosecute a fraud action. That means that its important to gather as much evidence as you can in support of your allegations before you bring the action.

If the government believes that it can prove the case, it will likely intervene and take charge. If the government declines to intervene, you can pursue the case on your own, but you may find it much more difficult to succeed.

— Do you have to act alone?

If you and several coworkers become aware of the fraud at once and each of you have access to different pieces of information that prove what is happening, you can file the qui tam case together. While that ultimately means sharing the reward, it may also make proving the case much easier.

Source: FindLaw, “Qui Tam Actions: Overview,” accessed Jan. 19, 2017

WHISTLEBLOWERS WHO MAKE INTERNAL REPORTS ARE ALSO PROTECTED

Thanks to changes in 2014 to the laws protecting whistleblowers in California, employees who report suspected violations of federal or state laws to their bosses, instead of directly to the police or government officials, enjoy the same protections as those that go outside of the company with their information.

Unfortunately, not every company seems to have gotten the message.

For example, a California woman has filed a lawsuit against Wells Fargo alleging that she was subjected to harassment and ultimately wrongfully terminated after 14 years of employment in retaliation for reporting illegal sales practices by other employees to her superiors.

The woman, a bank manager for 11 years, reported that some of the sales employees were opening accounts and credit cards without the express consent of the customers. An investigation ultimately uncovered widespread illegal activity and the financial firm has faced lawsuits from some former customers who allege their credit scores were harmed by the new accounts. The company was also fined $185 million for the illegal activity of its employees.

The company is alleged to have responded by subjecting the whistleblower to harassment, including unfair disciplinary actions, hostile interrogations from her bosses and suddenly poor performance evaluations. She was then demoted, transferred and had her wages reduced in the 10 months prior to being fired.

This is exactly the sort of behavior that whistleblower laws were meant to prevent. Sometimes employees think that by taking their report to their internal bosses that they can avoid the retaliation that others have faced after taking their allegations to outside authorities.

If that were so, the 2014 changes to the law probably wouldn’t have been necessary to enact. It’s important to note that you’re protected not only from retaliation by your direct employer but also from retaliation by anyone acting on your employer’s behalf, like a management “consultant” who is suddenly brought in to overhaul your department.

Whistleblowers who are successful in their lawsuits can claim lost wages, ask for reinstatement and sometimes recover for damage to their reputation. If you believe you have been retaliated against unfairly at your place of employment, you might find the assistance of an experienced attorney very helpful.

Source: California Labor Law News, “Wells Fargo Whistleblower Files California Harassment Lawsuit,” Heidi Turner, Dec. 29, 2016

ASSEMBLY BILL 1509: EXTENDS WHISTLEBLOWER PROTECTIONS TO FAMILY

Whistleblower laws are designed to protect people who come forward with information about misconduct or illegal activities in the workplace. They’re designed to encourage people to take action against wrongful activity and to provide those people who do so with some measure of security in return for their honesty and bravery.

Not every state has strong whistleblower laws, but California does. Employers have long been prohibited from retaliating against whistleblower employees by firing them, demoting them, transferring them to less-than-desirable positions or otherwise harassing them.

Unfortunately for many whistleblowers, however, the world can be a small place and employers who are frustrated and unable to directly retaliate have sometimes found another way to get even: They go after other employees who are part of the whistleblower’s family.

It isn’t uncommon, especially in industrial fields, for family members to work for the same company. Sometimes employees meet on the job and marry and start a family. Sometimes older relatives with help younger relatives get a foot in the door with the company and numerous family members end up working together.

That can be a serious problem for whistleblowers. People may be willing risk their own jobs, but they don’t want to risk their mother’s, father’s, brother’s, or cousin’s job. However, as of January, 2016, Assembly Bill 1509 went into affect specifically to address that issue. AB 1509 broadened the existing whistleblower laws to make it illegal to retaliate against the whistleblower’s family member-coworkers as well.

How can you or a family member tell that you’re being retaliated against? Some signs are easy, but other maneuvers can be much more subtle:

—Your employer suddenly takes disciplinary action against you or your relative over something that was always acceptable before.

—Your employer suddenly gives you or your relative negative performance reviews when nothing about the quality of your work has changed.

—Your employer denies you or your relative ordinary time off work, when taking time off has never been an issue before.

—Your employer gives you or your relative an increased workload, maybe one that’s almost impossible to achieve.

Those are just some of the examples of how an employer might retaliate against you or a family member after you blow the whistle. An attorney at our firm would be happy to discuss your situation and help you determine if you or a relative-coworker are a victim of retaliation for whistleblowing.

WHISTLEBLOWING DOES HAVE CONSEQUENCES

If you are a protected whistleblower, your employer is usually not allowed to take retaliatory action against you. But that doesn’t mean whistleblowing doesn’t come with some other negative consequences, and we believe our clients should be prepared for all possibilities when they make a choice to bring illegal or unethical action to light.

Whistleblowing laws don’t always protect you from the response of coworkers or those in the business community. Your industry reputation can be at risk, especially if others fight back against your claims. While anonymity is sometimes an option, it can’t always be relied upon, so you have to know exactly what you might be getting into before you make a whistleblowing statement.

A study published by the National Library of Medicine points to problems experienced by some medical doctors after they brought wrong practices to light. These physicians were actually encouraged by their organizations and the medical community as a whole to step forward, as doctors are supposed to report wrongdoing and unethical behavior to appropriate parties. However, the same doctors did see negative consequences after becoming part of a whistleblowing investigation.

Some of the negative consequences included impact to business and vendor relationships and perceived standing among the local medical community. While the doctors were protected within the bounds of any employment or direct service contract they might have, they were not always protected with regard to any secondary contracts or professional investments.

We aren’t noting this study to dissuade people from taking the right action. However, we are pointing out that the path of the whistleblower isn’t always easy. Having a legal professional on your side can help you plan and navigate that path without as many negative consequences.

Source: US National Library of Medicine, “‘Don’t shoot the messenger’: the problem of whistleblowing in general practice,” Nigel Mathers, accessed Aug. 12, 2016

UNDERSTANDING WHISTLEBLOWER PROTECTIONS UNDER SARBANES-OXLEY

The federal Sarbanes-Oxley Act was passed in 2002 and has come to be known as SOX in business environments. SOX addresses fraudulent financial activity in publicly traded companies and provides some specific protection for those who report such activity.

SOX protections extend to employees of publicly traded companies. They also cover contractors and subcontractors who are working with or for such companies as well as agencies of those companies. The type of reporting protected under SOX is fairly broad. You might be protected whether you make a report to a federal agency or to a law enforcement agency. Reporting to your supervisor or through internal compliance channels is also protected.

If you report possible cases of fraudulent activity within a publicly traded company where you work, SOX protects you against retaliation by your employer. That means you can’t be fired for making a good-faith report of a possible fraud issue. You also can’t be demoted, blacklisted or discriminated against in any way because you made that report.

It’s important to note that you are not completely protected from termination or other action simply because you made a report. If you make a report and then you simply don’t do your job, you can be let go for not performing your job. However, if you feel you are being discriminated against in any way because you reported fraud, then you might have a legal case against your employer.

Note that SOX complaints do come with a statute of limitations. You have 90 days from the date you learned you might have been discriminated against or harassed because of your report to file a claim. If you think you might want to file a claim, consider speaking with an employment law professional about your options.

Source: National Whistleblower Center, “Sarbanes-Oxley (SOX) FAQ,” accessed July 22, 2016