The New Rule: Employees are given whistleblower protection for lodging complaints of violations already known to the employer.

While California courts have already granted employees with broad whistleblower protection for complaints based on any “reasonable belief” of a violation of law, courts have taken it a step further. Now, employees are given protection for complaints already known to the employer. This departs from prior case law.

The California Supreme Court, in People ex rel. Garcia-Brower v. Kolla’s Inc., reviewed prior case law defining what “disclosure” meant. The Court of Appeal, in Mize-Kurzman v. Marin Community College Dist., held that “disclosure” required new information (e.g., you cannot “disclose” something already known). We’ll save you the trouble—we agree with the Court of Appeal. Unfortunately for us, and for the Court of Appeal, the California Supreme Court disagreed. In doing so, it looked to the Oxford English Dictionary and Webster’s Dictionary definitions of “disclosure,” including “to make [something] openly known” and “open [something] up to general knowledge,” to hold that something already known can still be disclosed. While the California Supreme court acknowledged that “disclose” often refers to sharing previously unknown information, it did not carry the day.  

In sum, the California Supreme Court held that a protected disclosure under Section 1102.5 encompasses reports or complaints of a violation made to an employer, even if the recipient already knows of the violation. 

Potentially Disastrous Effects & What Employers Can Do

Has a case been filed against you for a violation of any law whatsoever? Wage-and-hour case? OSHA violation? Unfounded allegations of discrimination with the Civil Rights Department? If your employees know about them, they can piggyback by lodging a complaint (including on behalf of someone else) and gain whistleblower protection. Not that your employees would ever do such a thing. But, in a hypothetical world, employees can exploit publicly known complaints to cloak themselves in whistleblower protection. Employers should be on their guard.

Here are some practical tips to help prevent retaliation claims:

  • The best way to defend against a retaliation claim is to have consistent and timely documentation of performance issues. That way an employer can point to conduct that occurred before an alleged complaint, and rebut the presumption of connection between a “complaint” and discipline. 
  • Be sure to have managers check with HR before taken adverse actions, such as issuing discipline, transferring employees, and terminating employees. That way HR can ensure there is no known protected activity, or if there is, carefully document around it.
  • Train your managers to report complaints to HR. Even if they seem “informal.”
  • Have strong anti-retaliation policies, and be sure to consistently inform anyone who complains or participates in an investigation about them (and document it).
  • The best defense against a whistleblowing or retaliation claim is proof that the two are unrelated.  And good old-fashioned documentation is the best form of proof.