Whistleblowing Awards & Retaliation Protection

American law has two main systems for whistleblower awards & protections. There are whistleblowing awards offered under some statutes & there are anti-retaliation protections, including for workers.

Whistleblowing Awards

In addition to not-retaliation protections discussed in the next section, American Reward-based Incentives for whistleblowers exist under numerous federal statutes & statutes. Under some of these laws, whistleblowers are able to report & collect confidentiality. In other instances, it is not assured. Whistleblowing reward systems exist include:

Federal False Claims Act – concerning fraud in government contracting & entitling whistleblowers to up to 15 – 30 % rewards on monies collected by the government.

State False Claims Acts in most states including California, usually based on the federal law.

IRS Qui Tam Claims – for exposing tax fraud & underpaying – rewards of up to 15 – 30 %.

US Securities Exchange & Commodities Exchange Act – for exposing fraud by publicly-traded companies or in trading commodities – 10 – 30 % rewards.

Financial Institutions Reform Recovery & Enforcement Act (FIRREA) – for exposing banking fraud.

Endangered Species Act; Lacey Act; Fish & Wildlife Improvement Act; Act to Prevent Pollution from Ships – assorted rules & rewards; not always confidential.

Foreign Corrupt Practices Act – exposing bribery of foreign officials – 10 – 30 % rewards.

Anti-Retaliation Laws

In addition tp rewards that have been established for reporting certain types of illegal activities, federal & State whistleblowing protections exist for both employees & non-employees.

General Whistleblowing Laws for Employees

Whistleblowers are protected from retaliation at work concerning complaints about violations of law under both common law & state statute.

Under California’s Tameny decision, employees may have claims for wrongful discharge in violation public policy if they can establish:

  • an employer-employee relationship
  • that employer took an adverse employment action
  • a “nexus” exists between the adverse action & the employee’s “protected activity” (in effect, that one thing substantially caused the other) &
  • damages.

To prove a Tameny violation, the employee’s complaints must have concerned a pertinent public policy. There is a four-part test used to determine if the policy supports a wrongful discharge or discrimination case.

  • was the policy based on a statutory or constitutional provision or ethical rules or regulations enacted per statute?
  • was the policy “public” in the sense that it is for the public benefit rather than merely to serve the interests of an individual?
  • was the policy firmly established at the time? &
  • was the policy substantial and/or fundamental?

Where an employee has a reasonable but mistaken belief that unlawful acts were occurring, & makes a complaint, the Tameny protections apply. On the other hand, where an employee mistakenly believes a legal violation is occurring but makes no complaint, the protections do not apply. DeSoto v. Yellow Frieght Systems, Inc., 957 F.2d 655 (9th Circuit, 1992).

Even stronger protections exist for employee covered by the whistleblowing provisions Section 1102.5 of the California Labor Code, which prohibits employers from retaliating against employees who report violations of federal, state, or law laws to government regulations or certain persons within the company, or for refusing to participate in violations of such laws.

Several sections in the California Government Code establish protections specific to whistleblowers who work for the government.

Law Protecting Employees for Participation in Activities Concerning Discriminations Protection Laws

Federal & state law also prohibit employees for participating in protected activities under various discrimination statutes, particularly the federal EEOC & ADA laws & in California under the state Fair Employment & Housing Act (FEHA). U.S. Title VII prohibits retaliation against employees (& employment applicants) who engage in “protected activities.” 42 USC s 2000e-3(a). Similar protections for workers exist under the Americans with Disabilities Act. 42 USC s 12203(a). In California, similar protections exist under the FEHA statute. Gov’t Code s 12940, subd (h).

Title VI & FEHA both protect employees who either:

  • participate in any manner in proceedings or hearings under the statutes; or
  • oppose acts made unlawful by those statutes.

“Participation” is interpreted broadly. For example, it has been held to protect one spouse for another’s participation in EEOC activities. It has been held in California to protect an employee who threatened to file a charge of employment discrimination. Iwekaogwu v. City of Los Angeles, 75 Cal.App.4th 803 (1999).

As with the Tameny protections, FEHA protects employees who complained of or opposed conduct they reasonably believed were discriminatory, even when it is later determined that the conduct was not prohibited by FEHA. Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028 (2005).

In addition to the general protections for workers provided under Section 1102.5 of the Labor Code Several, sections of the California Government Code provide protections for specific types of government workers.

Additional Protections for Government Workers in California

Section 53296 – for local government employees or applicants who file written complaints of a violation concerning gross mismanagement or significant waste of funds, abuse of authority, or substantial & specific danger to public health or safety.

Section 9149.20 – for persons employed by any local agency or holding office in any state agency (including UC & CSU) or appointed by the Governor — provides for civil actions protecting such employees who disclose improper government activities including violation of any federal or state law or regulation to legislative committees (except for disclosures of information prohibited by law).