Lawyer Monthly Magazine - September 2021 Edition

California’s Fair Employment and Housing Act (“FEHA”). FEHA is a particularly robust statute that, among other things, prohibits discrimination and retaliation in the workplace. Although this statute is not typically considered a “whistleblower” statute, it acts like one. It prohibits retaliation for complaining of harassment or discrimination and/or for refusing to participate in harassment or discrimination. Importantly, it provides employees with the right to pursue economic and non-economic damages in court, as well as punitive damages and attorneys’ fees. What significant case law has built up around the practice of whistleblowing? As of January 2021, California Labor Code Section 1102.5 was amended to allow a court to award attorneys’ fees to prevailing employees. The intent behind this amendment was to encourage whistleblowers to come forward. This amendment is particularly significant, given that this statute is by far the most- used whistleblower law in the state. Are there any particularly common signs that an employee is facing unlawful retaliation for reporting wrongdoing? Retaliation comes in many forms. Some employees are demoted, while others are transferred, forced to quit, or are set up and thenfired. Eachact is designed to cover up, discredit, or silence the employee. Regardless of the outcome, however, almost every adverse employment action starts the same way; with shunning. Communication becomes unusually formal. The complaining employee is excluded from meetings. Access to information is taken away. Responsibilities are given to others. Shunning can be devastating and, by the time the employee has been fired, anxiety and emotional distress have already affected their lives. Shunning is a lonely, human experience that every juror understands. WWW.LAWYER-MONTHLY.COM | SEP 2021 MY LEGAL LIFE - JAMES URBANIC What legal recourse is available to employees in this situation? Remedies under the various whistleblower statutes varywidely.Mostwill offerbackpay and reinstatement. Others offer rewards. However, not all whistleblower statutes offer an employee an opportunity to seek monetary damages in court, and the road to relief is equally varied. Complaints can be adjudicated administratively, in federal court, or in state court. When multiple statutes apply, an employee may be faced with a tradeoff; do they give up certain remedies in exchange for a better forum or a more relaxed procedure? Fortunately, employers that violate California Labor Code section 1102.5 may be ordered to reinstate whistleblowers with backpay and benefits (Labor Code section 98.6(b)), pay the employee’s actual damages (Labor Code section 1105), and/ or pay a civil penalty of $10,000 for each violation (Labor Code section 1102.5(f), 98.6(b)(3)). As of January 2021, employees may also seek attorneys’ fees if they have brought a successful action under that statute. Similar relief is available under FEHA. The significance of whistleblowing has become fixed in the public consciousness. Do you feel that the culture surrounding whistleblowing has begun to change? Yes, but in a complex way. Many companies have learned that it is good business to have a complaint hotline in their glossy employee handbook. It makes the company look good. In reality, no company likes to have its operation interrupted by a whistleblower, and I suspect many are happy not to know about violations or non-compliance with the law. What is changing is how jurors perceive whistleblowers. On one hand, we have become willing to identify inappropriate “ A good attorney will spend time on the employer’s conduct -- the lengths the employer took to cover up the complaint or set the employee up for termination. ” 24