On May 22, 2023, the California Supreme Court issued a unanimous decision expanding employee whistleblower protection. In People ex rel. Garcia-Brower v. Kolla’s Inc., the Court held that the definition of the term “disclosure” in California Labor Code section 1102.5 includes reporting of a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation to an employer, even if the employer already knows of the violation.
Is This Really “Whistleblowing”?
Now, after this decision, employees can effectively protect themselves from termination by making a report about some alleged wrongdoing or non-compliance that has already been reported. Is that even “whistleblowing” when the “whistle” has already been “blown”? It is now, so employers should be aware of this new decision and adjust their HR response to protect themselves.
What Should Employers Do Now?
Now, more than ever, employers need to have a system in place for employee reporting. Documentation is an employer’s best defense.
Employers should make sure that all managers take seriously all employee reports or complaints about the violation of a state or federal statute, or about the violation of or noncompliance with a local, state, or federal rule or regulation. Managers should relay those reports/complaints to HR immediately. HR should then conduct an investigation in an expedient and thorough manner, and keep the complainant informed during the investigation process. After the findings of the investigation are complete, the employer should take immediate and appropriate action to remedy the violation. Every step of the investigation should also be thoroughly documented, so that there is a record of the employer taking the employee report/complaint seriously. By doing this, if the employer is later confronted with a retaliation claim, the employer can show that it took the employee’s complaints seriously.
Documenting employee performance is just as important as documenting employee complaints. Why? Because that documentation will make clear that the employee is being disciplined for the legitimate performance issue explained in the documentation – and not because the employee came forward with a complaint. Managers should also be trained to check with HR before taking any adverse action against an employee to make sure that the employee has not recently reported any issues or complaints. If an employer is faced with a retaliation complaint, the employer will be able to point to the documented performance issues as a defense to the adverse employment action. Otherwise, the employee could argue that the adverse action was in retaliation for having made those complaints.
Most importantly, the employer will want to have clear, documented anti-retaliation policies. These policies should be in a location that is easily accessible to all employees, such as in an employee handbook, or posted on an intranet. Reiterating these policies to an employee who reports/complains is an effective way to show the employee that the employer takes his/her/their report or complaint seriously and will not retaliate.
You can read the full text of California Labor Code section 1102.5 here.