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CALIFORNIA EMPLOYERS CAN NO LONGER RETALIATE AGAINST EMPLOYEES FOR REPORTING UNLAWFUL ACTIVITY AS PART OF THEIR REGULAR JOB DUTIES

Over the years, a body of federal caselaw developed that eroded protection for employees opposing unlawful conduct. These cases held that an employee whose job duties required that they report illegal activity were not protected from retaliation for reporting such illegal activity unless they somehow took a position adverse to the company in doing so. See, e.g., Correa v. Mana Prods. (E.D.N.Y. 2008) 550 F.Supp.2d 319, EEOC v. HBE Corp (8th Cir. 1998) 135 F.3d 543, Lund v. Leprino Foods Co. (E.D.Cal. 2007) 2007 WL 1775474, *1, and McKenzie v. Renberg’s Inc. (10th Cir. 1996) 94 F.3d 1478, which denied employees protection from retaliation because, the courts felt, they did not “oppose” unlawful conduct simply by doing their jobs and reporting it. The United States Supreme Court extended this doctrine further in a case involving free speech rights of public employees. The Supreme Court, in Garcetti v. Ceballos (2006) 547 U.S. 410, 421, held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Fortunately, our Court of Appeals began to chip away at this growing cancer on our anti-retaliation laws in McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, which affirmed that reporting unlawful activity “can . . . constitute protected conduct under Labor Code section 1102.5, subdivision (b) even if [the plaintiff] ‘was simply doing [his] job’ in making the report.” Id. at 469 (quoting Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1386). That holding was ultimately adopted by California’s employee-friendly Legislature, which, effective January 1, 2014, amended California Labor Code Section 1102.5 to protect whistleblowers who report suspected unlawful activity “regardless of whether disclosing the information is part of the employee’s job duties.” This clear Legislative disavowal of the federal doctrine requiring employees to step outside their normal job duties to be protected from retaliation, should end the persecution of Human Resources employees and others who get fired simply for doing their job and refusing to sweep illegal activity under the rug. If you need more information on this topic, or would like a free consultation on any workplace rights issue, please contact the California Labor and Employment lawyers at Feldman Browne Olivares, APC. You can reach us at 800-350-0454 or 310-552-7812.