Terminating the Employment Relationship

Thus, a public employee may state a whistle-blowing claim where s/he reported a violation by third parties (e.g. contractors and peer level employees), as well as the employer, of a state or federal statute or non-compliance with a state or federal regulation to his/her employer. 56 Further, even at-will employees cannot be terminated in retaliation for reporting non-compliance with state or federal regulations under the whistleblower statute. In addition to civil liability, there may be criminal liability for violating this whistleblower statute. Labor Code section 1103 states that an employer who violates the whistleblower statute is guilty of a misdemeanor punishable by imprisonment or fine.

Employers should be aware that Labor Code section 1102.6 imposes a “clear and convincing” burden of proof standard on employers, which is a higher burden to meet. In a civil action or administrative proceeding brought under Labor Code section 1102.5, once the employee demonstrates by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, then the employer must demonstrate by clear and convincing evidence , not the lesser preponderance of the evidence standard, that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.

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Employees may assert concurrent retaliation claims under both FEHA and Labor Code section 1102.5. In Akers v. County of San Diego , an appellate court found that evidence was sufficient to support the jury’s finding of liability for claims of retaliation under both FEHA and Labor Code section 1102.5. In that case, the jury held that a negative evaluation and counseling memorandum issued to a county employee were undeserved and in retaliation for a letter sent by the employee’s attorney alleging gender/pregnancy discrimination. 57 b. California Labor Code Section 6310 Under Labor Code section 6310, an employee is protected against retaliation for complaining about workplace health or safety. Consequently, if an employee is terminated after s/he complains to a state agency, such as CalOSHA, regarding unsafe working conditions, s/he may have a retaliation claim under section 6310. c. California False Claims Act Government Code section 12653 is the whistleblower provision of the California False Claims Act (“CFCA”). Under the CFCA, a plaintiff must allege that the entity made a false claim where a “claim” is defined to include any request for “money, property, or services” from the state or any political subdivision. 58 However, a plaintiff is not required to show that a false claim was actually made. The plaintiff only needs to demonstrate that he/she had reasonably based suspicions of a false claim. 59

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 34