Protecting the Legal Rights of Whistleblowers in the Oakland Area
State and federal laws protect the brave people who blow the whistle on illegal activity at the workplace from specific dangers and challenges. The experienced whistleblower protection attorneys at Winer, McKenna & Burritt, LLP, know how to protect Oakland workers who report their employers’ illegal activities. If you chose to become a whistleblower, call (510) 200-0162 today to schedule your free consultation.
What Is a Whistleblower?
In general, a whistleblower is an employee who reports illegal activity (such as fraud, tax evasion, or similar white collar crimes). However, in California, any employee who reports illegal activity of any kind either to his company or to a government agency and is later retaliated against or fired, also can receive the protection of the law.
The federal Whistleblower Protection Act of 1989, as amended by the Whistleblower Protection Enhancement Act of 2012, applies to federal employees who report misconduct—including evidence of fraud, waste, or abuse—within government agencies. The Act’s stated purpose is to protect federal employees who disclose government illegality, waste, and corruption, because this serves the public interest. To this end, the Act prohibits federal employers from subjecting employees to adverse consequences for making whistleblower reports. Subsequent legislation has strengthened these protections.
The California Whistleblower Protection Act of 1993 enacted similar protections for state employees who report government wrongdoing.
But what about those employed in the private sector? State laws vary widely, but California law protects all employees from retaliation and termination as a result of reporting illegal activity to a company or government entity. (See California Labor Code Section 1102.5.)
Legal Protections for Whistleblowers
The federal Whistleblower Protection Act created the Office of Special Counsel for the investigation of whistleblower claims. The Office has the authority to investigate claims of federal whistleblower protection violations. The Office’s “paramount consideration” in conducting such investigations is the protection of whistleblowers.
Section 806 of the Sarbanes-Oxley Act of 2002 provided protections for some whistleblowers in the private sector. The Act came in response to the major corporate and accounting scandals at the turn of the century involving companies such as WorldCom and Enron. Congress invoked its authority over federal securities to apply whistleblower protections to those who work for publicly traded companies. Employees, officers, contractors, subcontractors, and agents of publicly traded companies may not discharge, demote, suspend, threaten, harass, or otherwise discriminate against an employee who engages in lawful conduct (such as reporting illegal activity) protected under Sarbanes-Oxley.
The U.S. Supreme Court, in Lawson v. FMR, later ruled that Sarbanes-Oxley whistleblower protections extended to private contractors and subcontractors who reported the wrongdoing of publicly traded companies.
And in 2017, Congress passed the Department of Veterans Affairs Accountability and Whistleblower Protection Act. Shocking reports of delays in access to VA healthcare, secret “waitlists” for veterans, and other abuses of power within the VA system prompted this legislation. Among other provisions, the Act requires the Department of Veterans Affairs to:
- Disclose its whistleblower protection rights to employees
- Prominently display whistleblower protection rights information at every VA facility and on the agency’s website
- Not remove, demote, or suspend protected whistleblowers (even on unrelated grounds, such as poor performance) without the approval of the Special Counsel.
Today, many federal agencies have made resources available to promote the protections of the Whistleblower Protection Act and the Sarbanes-Oxley Act. The Department of Labor, the Securities and Exchange Commission, and the Occupational Safety and Health Administration all maintain whistleblower webpages.
California law also provides protections to state whistleblowers. In many ways, the protections of California law are far more expansive and powerful than those of federal law. Section 1102.5 of the California Labor Code makes it illegal for employers to prevent their employees from reporting violations of state or federal statutes or regulations to the appropriate government or law enforcement agency. Employers are also prohibited from retaliating against an employee who invokes the right to make such a report. Employers are even prohibited from retaliating against family members of employees who make whistleblower reports.
How Some Employers Attempt to Get Around Whistleblower Protection Laws
The provisions of the California Whistleblower Protection Act indicate just how far some employers will go to find a loophole in whistleblower protections (such as retaliating against the family member of a whistleblower, instead of the protected employee). Another common strategy is to fabricate other reasons for an employee’s dismissal, demotion, pay cut, or other changes to the terms and conditions of employment.
This is what happened to former San Diego State University women’s basketball coach Beth Burns. According to the San Diego Union Tribune, Burns (who had the most wins of any women’s basketball coach in SDSU history) was terminated in 2013 with four years left on a new five-year contract. SDSU claimed her termination was the result of elbowing an assistant coach on the bench, among other mistreatment of subordinates. Burns, however, claimed that she was retaliated against because of her frequent and persistent complaints of inequality between the men’s and women’s athletic programs at SDSU—a violation of Title IX of the Civil Rights Act of 1964. A jury agreed that Burns was indeed a protected whistleblower and awarded her more than $3.3 million in damages. The parties later settled for a reported $4 million.
In an ongoing case, insurance giant United Healthcare is fighting a federal lawsuit against a former employee. The Star Tribune reports that United is the largest provider of Medicare Advantage plans. In this capacity, it performed risk assessment reviews of thousands of Medicare subscribers—a standard procedure. However, the federal government was alerted by a whistleblower who was then working for United that the healthcare company failed to correct coding errors it found during the process. These coding errors resulted in overpayments (estimated at $1 billion) by Medicare to United. The federal government has joined the lawsuit against United.
Because federal whistleblower laws are more limited in their applicability, employers outside of California are often better able to avoid liability. Unless the employee works for a federal agency or a publicly traded company, federal whistleblower laws will not apply. This can also pose a problem for California employees who work remotely for national companies. In such cases, the employer may attempt to argue that its home state’s employment laws, not California’s, apply to it.
Whistleblowers Often Have Other Legal Protections Available to Them
Whistleblower laws are not the only legal protection that can shield whistleblowers from retaliation. Many recent whistleblower cases have involved violations of state and federal sexual harassment laws. In the wake of shocking scandals that have rocked powerful companies such as Uber and the Weinstein Company, victims have sought redress for sexual misconduct. These actions can violate criminal statutes, civil sexual harassment statutes, or both. Sexual harassment laws can shield employees from workplace retaliation when they report legal violations to an appropriate government agency or law enforcement authority.
Many other types of legal protections might apply to a given case. A whistleblower who was also the victim of a crime (for example, blackmail, threats, or intimidation that violate the California Criminal Code) may have the protection of the California Victims Bill of Rights Act of 2008. This law may entitle a victim who was fired as a result of a whistleblower report to file a civil lawsuit for wrongful termination.
These are just a few of the many legal tools available to whistleblowers in need of legal protection. An attorney experienced in whistleblower protections can help you with the overwhelming task of taking on a powerful organization by exploring all of your options.
How an Attorney Can Help Protect Whistleblowers’ Legal Rights
Even under the best of circumstances, the process of making a whistleblower report is demanding on an employee. It can endanger the whistleblower’s employment, financial interests, and even personal safety, so an employee needs an effective strategy before making a whistleblower report.
An experienced whistleblower attorney will know how to help whistleblowers form such a strategy. Effective legal strategies can help protect the whistleblower’s safety (and in certain limited cases, anonymity). They can also address the likely negative consequences a whistleblower will face, including termination of employment, social isolation, and the stigma associated with blowing the whistle on an employer (which can cause an entire industry or employers in the geographic location to shun the employee).
In some cases, the strategic use of media coverage can help support the whistleblower’s claims. Employers, however, may use public statements against the whistleblower in court proceedings. Any public statements require careful timing and careful approval by an experienced attorney. Connecting with whistleblower advocacy organizations and networks can also help the whistleblower find social support during a potentially painful and isolating process.
Ultimately, a whistleblower claim almost always results in an individual employee facing the pressure of an entire powerful organization, agency, or government. This is why whistleblowers need attorneys who can help them access the full protections of the law. By accessing an attorney’s experience, the whistleblower will be able to plan strategies for his or her protection and mitigate the employer’s power with some of his or her own.
Aggressive Defense of Whistleblower Protections
Whistleblowers are protected by state and federal law. It is important that they have legal guidance in order to enforce these protections and keep themselves safe. Call (510) 200-0162 today or contact us online to schedule your free consultation with an experienced whistleblower protection attorney at Winer, McKenna & Burritt, LLP.