Do Not Fire Employees If You Suspect That They May Be a Whistleblower

Most employers understand that they cannot retaliate against an employee who has filed a report to a government agency regarding any of the employer’s business practices. What most employers do not know is that California law prohibits an employer from retaliating against an employee who the employer simply believes has filed a complaint, even if that employee has not filed such a complaint or the complaint turns out to be false. (see Cal. Lab. Code Section 1102.5(b).) The recent case of Diego v. Pilgrim United Church of Christ provides an example of this scenario. In Diego the employer was fired by the employer after an anonymous complaint was lodged regarding the employer with the Department of Social Services (“DSS”).

After a surprise inspection, the DSS found no violations and no citation was issued against the employer. After the DSS notified the employer of the anonymous complaint, one of the employer’s managers spoke with the plaintiff and insinuated that the employer believed that the plaintiff was the source of the anonymous complaint. One week after the DSS determined that no violation had taken place, the employer fired the plaintiff. The plaintiff alleged that the termination had occurred in violation of public policy because the employer allegedly terminated her because it suspected that she had made a complaint to DSS.

During the proceeding, there was no dispute that the plaintiff was not the source of the DSS complaint. In allowing the case to proceed to trial, the appellate court held that it was not relevant that the plaintiff was not the actual “whistleblower” or that the complaint lodged with DSS was false. If at trial, it turned out to be true that the employer had fired the employee because it believed she had lodged a complaint with DSS, such a termination would violate public policy because the motive would have been to punish a whistleblower, even though the terminated plaintiff had not been the whistleblower and even in light of the fact that the complaint made to DSS had been false.

As an employer, if you have any questions regarding a potential whistleblower claim from an employee or about any other issue when navigating the California Labor Law minefield, contact the author to discuss further.

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