Monday, August 11, 2014

Whistleblower Protection Expands in California

Most forms of discrimination are not illegal. It's not illegal for your employer to discriminate against you because they don't like you, because they want to hire their nephew instead of you, or because you wore yellow socks to work one day and they don't like yellow socks. Your employer is legally allowed to discriminate, so long as the discrimination is not based on a protected characteristic, like race, age, sex, disability, or something like that.

By the same token, most forms of retaliation are not illegal either. If you complain to Human Resources that your boss doesn't like you, or that they hired their nephew, you can legally be retaliated against and fired for that. It may be unfair, but it's not against the law.

Some forms of retaliation, however, are definitely against the law. It is illegal to retaliate against someone because that person has "blown the whistle" on something illegal. Note that the whistleblower has to be reporting something *illegal,* not just arbitrary or unfair. So, for example, the person who complains of racial discrimination in the workplace is a whistleblower, and he or she can't be retaliated against because of that.

This year, California enacted a host of new laws providing additional protections for whistleblowers.

1. It used to be true that California's Labor Code only protected your reports of most illegal activity to a government agency. Then one court came along and said that you were protected if your employer thought you were going to report to a government agency, and preemptively fired you. Another court disagreed, and California law became uncertain.

The Legislature settled that uncertainty this year. You are now protected under California Labor Code §1102.5(b) as a whistleblower if you report illegal activity *internally* to someone who has the authority to do something about it.

Even if your employer *believes* you reported something illegal, but you really didn't, it's still prohibited from retaliating against you now.

2. Employers can no longer retaliate against immigrant workers who exercise their legal rights by (a) requiring more or different paperwork to show immigration status than the federal law requires, or by denying paperwork that appears to be genuine on its face, (b) using the E-verify system in a way not required by federal law, (c) filing or threatening to file a false police report, or (d) threatening to contact or contacting immigration authorities.

Whatever your views on undocumented immigration, these workers have a right to complain about illegal working conditions without being threatened on the grounds of their immigration status.

3. Victims of sexual assault and domestic violence have long been protected from retaliation for having to appear in court for related issues. A law passed in 2014 extends that law to victims of stalking, as defined in the Penal Code and Civil Code. The new law also requires employers to provide reasonable accommodations for the safety of such employees while at work.

4. Employers cannot retaliate against employees who provide CPR or other voluntary, emergency medical services in response to a medical emergency.

There are other laws that passed this year as well that relate to whistleblower protections.

Whistleblower cases can be among the most powerful of retaliation cases. We can all sympathize with employees who are trying to do the right thing, only to have their employers retaliate by taking away their livelihoods.

If you believe that you have been the victim of illegal whistleblower retaliation, make sure to take action within your statute of limitations, or your rights may be lost forever.

Tuesday, August 5, 2014

You Have Been WARNed: California Employers and their Duty to Warn of Shutdowns

Employment in California is at-will. That means that, absent some type of agreement to the contrary, you can be fired for any reason or for no reason at all.

But there are lots of limitations on that rule. The federal government has some limitations, but the State of California has many more. California law frequently models itself after federal law, but then adds additional protections. One example is California's WARN Act, or Cal-WARN.

California's Worker Adjustment and Re-training Notification Act applies to employers with more than 75 employees in the last 12 months. Passed in 2002, Cal-WARN was a reaction to mid-sized companies opening and closing in rapid succession, taking a heavy toll on local communities.

In a nutshell, Cal-WARN requires covered employers to give their workers 60 days advanced notice of a mass layoff, relocation, or termination of operations. If they don't do it, they're liable for their failure to provide such notice up to 60 days of wages and benefits.

That's good in theory, but here's the problem: companies that are laying off or closing down probably don't have any money. So who's going to pay those 60 days of wages and benefits?

That's where Cal-WARN is so much better than the federal WARN Act. Although the courts have said that Cal-WARN is modeled after the federal law, the two really have very little to do with one another. In fact, they share virtually no language in common. (As near as I could tell, Cal-WARN may have been modeled after Maine's Severance Pay Act, because that's the earliest law that I could find with language similar to Cal-WARN.)

Cal-WARN has its own definition of "employer," which includes "any person . . . who directly or indirectly owns and operates a covered establishment. A parent corporation is an employer as to any covered establishment directly owned and operated by its corporate subsidiary.:

That's a lot to take in, but it essentially means any entity, whether a person or a company, who directly or indirectly owns and operates the business. A parent corporation is liable for its subsidiary's actions even if it doesn't operate the business.

This opens up a lot of avenues under Cal-WARN that aren't available under the federal act. I've hooked private investment companies (they're my favorites; their egos just won't let them not try to operate the business themselves), parent corporations, and individuals into liability for Cal-WARN. That's because the whole point of Cal-WARN is to protect workers from sudden unemployment,  and to give them a financial bridge to finding something else. So Cal-WARN extends liability to employers above and beyond what the law normally thinks of as an "employer."

Cal-WARN is a bit of a hodgepodge of a statute. It's internally contradictory, and in some places it just doesn't make any sense. But it is a powerful tool available to displaced workers, and it is especially valuable in a bad economy.