Speaking up after witnessing or suspecting inappropriate or fraudulent activity in your workspace can be particularly intimidating as an employee. It can often feel as though you are gambling with your job security and future for the greater good of your coworkers, the company, and in many instances, the safety and well-being of the public. However, if you recognize illegal or unethical actions and behaviors by your employer or a coworker, you have the right and responsibility to blow the whistle.
According to the California Labor Code Section 1106, a whistleblower is an individual who alerts or exposes wrongdoing to a person or entity of a higher authority than them. The person or organization the whistleblower reports to should have the power or capacity to investigate and correct the alleged offense(s).
Why Blow the Whistle?
Instances warranting whistleblowing in a California workplace include but are not limited to financial fraud or embezzlement, workplace safety violations, discrimination or harassment, environmental violations, offenses against labor laws and codes, healthcare fraud, and retaliation against whistleblowers. Although reporting these wrongful and often illegal acts is valid, it is rarely easy and without risk of adverse effects.
According to the CA Labor Codes, all an employee needs to whistleblow is reasonable cause.
Whistleblowing can feel like a massive action, but it is often necessary when there is reasonable concern about or evidence of illegal or unethical activity.
Whistleblower Protections for California Workplaces
In San Francisco, employees are protected by several state and federal laws. For example, Whistleblower Protection Labor Code 1102.5 safeguards employees from retaliation or other unlawful efforts to block someone from speaking up and reporting violations of local, state, or federal laws, regulations, or rules or declaring suspected improper governmental activities.
Again, whistleblowing can come with the risk of retaliation from employers, coworkers, union members, and company associates. Whistleblower retaliation in the workplace can take many forms, and it can be both subtle and overt.
Some examples of retaliation include:
- verbal abuse,
- isolation,
- demotion or termination,
- reassignment,
- negative performance reviews (unwarranted),
- and legal action.
Although organizations must have strong policies to protect whistleblowers and prevent retaliation, it’s critical to note that whistleblowers may and often encounter personal and professional risks. Therefore, they should take measures to protect themselves, including documenting pre, during, and post-whistleblowing and seeking legal counsel. Nevertheless, whistleblowers are paramount to stopping unsafe work environments, fraud, and other illegal activities that could harm the public, the environment, and the business or corporation.
Note: If you have already blown the whistle at work and are facing retaliation, it is prohibited by law, and you may have grounds for a legal claim against your employer or the offending party.
Understand Your Legal Rights
Whistleblower protection laws exist to protect employees who report wrongdoing in the workplace, such as the aforementioned Whistleblower Protection Ordnance (WPO), additional sections of the California Labor Codes, The California Whistleblower Protection Act, and federal acts such as The California Fair Employment and Housing Act (FEHA). The FEHA is well-established legislation that shields specific characteristics from discrimination or harassment. These protected characteristics include but are not limited to gender, religion, sex, nationality, race, age, and marital status. Whistleblowers are protected under the FEHA in retaliation matters in California related to these protected features and attributes. Furthermore, The California Occupation Safety and Health Act and the federal agency Occupational Safety and Health Administration (OSHA) come into effect in cases of employees whistleblowing about unsafe working conditions. Many other federal, state and local laws apply to whistleblower protection in various situations and circumstances.
An integral part before and during the process of blowing the whistle is having a solid understanding of your legal rights and protections. A knowledgeable attorney with years of experience working on whistleblower claims will be able to explain how and what laws offer you protection as a whistleblower.
Document Everything
When blowing the whistle, you must document everything you can, including related conversations with your employer, e.g., emails, memos, and any other evidence you may collect—assembling and organizing all documentation. Make digital as well as hard copies whenever possible. So long as it is lawful, consider keeping documentation in a safe place outside of work, and when unsure, seek the advisement of your attorney.
Report The Misconduct to The Appropriate Authority
In San Francisco, employees can report misconduct to the Office of the Controller. The Office of the Controller is accountable for investigating matters and complaints of improper governmental activities, such as misuse of public funds, bribery, or conflicts of interest. Misconduct related to a violation of local, state, or federal laws or regulations may provide employees with the avenue of reporting instances of misconduct directly to the appropriate government agency, such as the Department of Labor or the Securities and Exchange Commission.
Reporting Misconduct Internally
Regardless of reporting misconduct to external authorities, employees should notify the appropriate internal division or officeholder. Internally declaring wrongdoing or malfeasance may look like relaying the experienced or witnessed misconduct to your supervisor, manager, or human resources department. If the wrongful behavior or actions are cough early enough, internal reporting can resolve the issue before it manifests into a more harmful and significant dilemma.
If the internal reporting process does not correct the behavior and resolve the case, the next step is reporting the misconduct to external authorities. It is wise at any level to seek the advice of an experienced employment litigation and whistleblower attorney.
Tip: Always follow up after reporting wrongdoing at the workplace. Check-in with the appropriate authorities to see if an investigation is underway.
Be Prepared for Potential Negative Backlash
Unfortunately, not only can blowing the whistle take courage, but it can sometimes (not always) be a bit stressful in nature. Preparing and doing your best to stay ahead of challenges is crucial for handling potential consequences, e.g., retaliation or wrongful termination. Ensure you have a support system like family, friends, or a therapist.
Consider Anonymity and Legal Consultation
If you are concerned about retaliation, consider reporting the misconduct anonymously. The WPO prohibits employers from taking adverse action against employees for making anonymous complaints. However, it’s important to note that anonymous complaints may be more challenging to investigate and may not be taken as seriously as a complaint from a named employee.
In review, blowing the whistle can be a trying experience. Still, by surrounding yourself with a close network of support, following the essential steps described above, and also considering contacting an experienced San Fransisco Bay Area whistleblower protection attorney, you can end unlawful practices in your workplace for yourself and others.
On the fence about blowing the whistle? Keep in mind; Whistleblowers are vital in preventing fraud and corruption and promoting safe and legal workplace practices. If you have knowledge of illegal or unethical behavior, you have the right and responsibility to speak up. Schedule a free and confidential consultation with a skilled Bay Area Employment lawyer today.
