Tameny Claims Based on Whistleblower Laws: Recent California Appellate Decisions Expand Scope

There were two recent decisions regarding whistleblower protections that could have a significant effect on the scope of claims based on Whistleblower Laws. The two decisions noted were issued by two separate districts of the California Court of Appeal with both courts issuing a reversal of trial court dismissals of claims for wrongful termination.

The two cases that received the recent reversals were: Ferrick v. Santa Clara University and Diego v. Pilgrim United Church of Christ.

Ferrick’s case was originally dismissed on the basis that her allegations of misconduct on the part of her director involved the financial interests of a private university rather than the required “public at large.” The Court of Appeals upheld this decision, but found specific aspects of Ferrick’s case that did state a cause of action for wrongful termination in violation of public policy, albeit on a narrow basis. The specific instance that caused the reversal was that Ferrick appeared to have reasonable cause to suspect commercial bribery. When she disclosed these reasonable suspicions it was to the university’s budget director. The misconduct that followed this specific instance was found to be not only affecting the university’s private financial interests, but also held implications of public policy that is embodied in Labor Code section 1102.5.  

Diego worked at the Pilgrim United Church of Christ preschool as an assistant director. In response to an anonymous complaint from an employee regarding a “foul odor” in a classroom and inadequate amounts of sand underneath playground equipment, the state licensing division conducted an unannounced inspection of the premises. No violations were found. Diego claims that the director of the preschool suspected she filed the complaint and in response, Diego was discharged several days later. Cause stated was insubordination, as she did not attend a meeting that was scheduled during her vacation. When Diego filed suit for wrongful termination, Pilgrim United protested that (according to former California Labor Code section 1102.5(b) which was in effect at the time of Diego’s termination) protection is only granted to employees who actually disclose state regulation violations. Their argument was that Diego was not protected by the stated employment law because she “did not file the complaint.” The trial court dismissed Diego’s case, but she appealed. The California Court of Appeal disagreed with the trial court stating that the public policy behind section 1102.5(b) wasn’t limited to employees who actually reported violations, but also included protection for employees who were suspected of reporting violations to state agencies. They noted that the intent of the law was to make employees comfortable reporting violations and to exclude employees “perceived” as whistleblowers from the protections offered by the statute would instead of a discouraging effect that would keep more employees from reporting violations.

To note: Labor Code section 1102.5(b) was amended as of January 1, 2014 to protect employees from retaliation based on the employer’s belief that they disclosed a violation. Claims for wrongful termination in violation of public policy, such as those stated above, are also known as Tameny claims. The California courts of appeal seem reluctant to confirm dismissal or summary judgment when the public policy that is at issue concerns a whistleblower or perceived whistleblower and whistleblower statutes. These two cases indicate that the public policy behind the whistleblower statute should be interpreted broadly in order to increase the protection for employees that may not be offered protection by the statute if interpreted as expressly stated. 

These two cases are significant because in both the courts supported Tameny claims for individuals who, previously, would have been denied protection under the whistleblower law. With Diego we see an employee who never blew the whistle being allowed to pursue a Tameny claim even though in the past the protection from adverse action was only offered to actual whistleblowers. With Ferrick we see an employee pursuing a Tameny claim even though the reports were only made internally. In the past, employees who reported internally were not afforded the same protection as a clearly defined “whistleblower.”

If you need more information on whistleblower laws in California or how California employment law protects employees from adverse action from employers after reporting violations, contact the experts at Blumenthal, Nordrehaug & Bhowmik. 

The National Labor Relations Act of 1935 vs. Your Boss’s Request to Never Disclose Your Salary

It goes without saying that your boss doesn’t want you to talk about your pay with your co-workers. Why does it go without saying? Because…they’ve probably said it. The majority of American workers from fast food workers to administrative assistants to dental hygienists have been advised by their superiors/employers not to discuss their pay with their co-workers. It’s so commonplace that when employers make the request most workers don’t bat an eyelash or question the validity of their employer’s right to make such a demand.

If you consider this request in terms of employment law, any time an employer requests or demands that you keep your pay rate or salary a secret from your co-workers they are breaking the law. 

According to the National Labor Relations Act of 1935 (NLRA), all workers are provided the right to exhibit “concerted activity for mutual aid or protection” as well as to “organize to negotiate with [employers regarding their] wages, hours, and other terms and conditions of employment.” In six states, the law goes further and actually states that workers retain the right to discuss their payment rate.

Employers insisting that you not discuss your pay rate with co-workers are in violation of the law, regardless of whether the request/demand/threat was made verbally or in writing and regardless of what the consequences are of ignoring the often unspoken rule. Sometimes it results in firing, but sometimes consequences are more subtle, i.e. a cold shoulder from supervisors/management.

Gag rules are currently thriving in the American workplace. According to a recent study by the Women’s Policy Research, approximately 50% of the American workforce (across all industries) is not to discuss their pay with their co-workers (either explicitly prohibited or strongly discouraged). The percentage is higher in the private sector (closer to 61%). Gag rules violate fundamental labor rights and create workplace environments that support discriminatory pay structures. Reforms are necessary.

President Obama did recently sign two executive actions that address transparency and accountability in the workplace. These will assist those who work for federally contracted employers, but others are currently on their own. Another bill, the Paycheck Fairness Act, would address the situation for the rest of America’s workers, but it has not yet been passed.

If you have questions regarding the gag rule and wrongful termination, please contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Retaliation and Wrongful Termination: California Family Physician Sues Major Health Organization

A retaliation and wrongful termination suit was filed by a prominent California family medicine physician against one of the largest health maintenance organizations in the nation, Kaiser Permanente West Los Angeles Medical Center. Jay Espejo, M.D., M.P.H., claims he was fired in retaliation after he reported a colleague’s, John Miguel, M.D., pattern of misconduct, i.e. unnecessary prescriptions, and the clinic’s alleged long term pattern of providing medical treatment and prescriptions according to patient demand rather than what is actually medically necessary. Dr. Espejo was employed at the medical center since 2011 and was promoted to partner in June.

According to the suit, Dr. Espejo was fired only two weeks after his promotion to partner. He filed suit for wrongful termination and retaliation claiming that his firing was a result of his reporting that his fellow doctor exhibited a disturbing pattern that enabled “doctor shopping” and involved the prescribing of narcotic drugs without medical need apparent in the patient requesting the prescription. Dr. Espejo claims he saw his fellow physician, Dr. Miguel, provide prescriptions for patients who had histories of suspected drug abuse and who were also exhibiting easily identifiable drug-seeking behavior.

Dr. Espejo claims that Dr. Miguel’s behavior was in direct violation of the Controlled Substances Act on multiple occasions. Espejo’s legal counsel cites emailed responses from Kaiser Permanente regarding the violations as evidence that they created a culture in the workplace that both enabled and supported physicians catering to their patients’ demands, which enabled drug-seeking behavior and abuse, doctor shopping, etc. rather than providing the quality (and necessary) medical care that they should have been offering.

For questions or more information regarding wrongful termination as a result of speaking out against improper conduct in the workplace, please contact the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

California Law Protecting Whistleblowers Lacking Work Authorization from Retaliation

California Governor Jerry Brown recently signed Assembly Bill No. 2751 into being. The Bill amends a recently enacted law prohibiting employers from retaliating against undocumented workers who engage in protected activity. The amendment is in reference to Assembly Bill No. 263, which restricted employers’ ability to put disciplinary action in place for employees who misrepresented their personal information (criminal history, immigration status, etc.)

The new law makes it illegal under California law for employers to retaliate by targeting immigration status when employees lacking work authorization are exercising a protected right such as filing a complaint for unpaid wages. The new law would prohibit employers from responding to whistleblowers lacking proper work authorization with threats to contact immigration authorities, discharging the employee, etc. California law now prohibits this type of action unless employee updates to personal information are directly related to the skill set, qualifications, or knowledge necessary for their job. The original bill’s intended purpose was to protect employees who are updating their work-authorization status, but it can be read to include protection for those wishing to update other information based on prior misrepresentations like criminal history. The amendment (AB 2751) clarifies the scope of the bill (AB 263) so that it specifically protects those employees who are attempting to update personal information in relation to name, social security number or federal employment authorization documentation. The amendment’s clarification allows employers to discipline/terminate employees who provides false statements not related to immigrate status, but continues to prohibit retaliation or disciplinary action against any workers who update records on lawful changes to immigration related information and documentation.

If you are unsure whether or not the new California law applies to your situation, you should contact the employment law experts at Blumenthal, Nordrehaug & Bhowmik immediately for legal advice regarding your specific situation.