The multitude of federal and state antiretaliation and whistleblower statutes are, on the whole, quite similar in their basic structure: They all prohibit employers from retaliating against employees for engaging in some type of “protected activity” like reporting violations of law, unsafe working conditions, or gross mismanagement and waste. But this macro similarity can obscure subtle, yet critical, differences among the statutes that practitioners need to be aware of.
An example of a critical difference among the statutes is found in the exhaustion of administrative remedies requirement:
- Title VII of the Civil Rights Act of 1964 (Title VII) (42 USC §§2000e—2000e–17) and the Fair Employment and Housing Act (FEHA) (Govt C §§12900–12996)—the “big two” antiretaliation statutes—contain a basic exhaustion requirement: Before filing a civil action under either statute, an employee must first file a charge with the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH). See 42 USC §2000e–5(b), (f)(1); Govt C §12965(b).
- The California Whistleblower Protection Act (CWPA) (Govt C §§8547–8547.15) contains different exhaustion requirements depending on which type of state employee the plaintiff is:
- The generally applicable rule is that state employees may not file a civil damages action unless they have first filed a complaint with the State Personnel Board (SPB), and the SPB has issued or failed to issue findings under Govt C §19683. Govt C §8547.8(c).
- Employees of the University of California and the California State University systems may not bring a civil damages action unless they have first filed a complaint with their respective university and either the university has failed to reach a timely decision or the university hasn’t satisfactorily addressed the complaint within 18 months. Govt C §§8547.10(c), 8547.12(c).
- Lab C §1102.5(b), Health & S C §1278.5, or the California Occupational Safety and Health Act (Cal-OSHA) don’t require plaintiffs pursing retaliation claims under them to exhaust any administrative remedies at all before filing a civil action. See Neushul v Regents of Univ. of Cal. (CD Cal 2016) 168 F Supp 3d 1242, 1246 (Lab C §5); Armin v Riverside Community Hosp. (2016) 5 CA5th 810, 826 (Health & S C §1278.5); Sheridan v Touchstone Television Prods., LLC (2015) 241 CA4th 508, 517 (Cal-OSHA).
- The Whistleblower Protection Act of 1989 (5 USC §2302(b)(8)) requires employees alleging retaliation to first seek corrective action by presenting a claim to the Office of Special Counsel (OSC) or the Merit Systems Protection Board (MSPB). 5 USC §§1214, 1221(a); 5 CFR §1209.5(a). If the employee files with the OSC, he or she may appeal an adverse decision to the MSPB (5 CFR §1209.5(a)), and an adverse decision by the MSPB is subject to judicial review (5 USC §1214(c)). If the employee files initially with the MSPB, an adverse decision is subject to judicial review. 5 USC §1221(a), (h).
With retaliation and whistleblower claims among the most frequently filed types of employment cases, employment lawyers need to be familiar with the various statutes and understand key differences among them. Exhaustion is but one example among many. To get you up to speed, CEB has added a new chapter on retaliation and whistleblower claims to Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation. And check out CEB’s program Whistleblower Law: Views from the Inside, available On Demand.
Other CEBblog™ posts you may find useful:
- Employers: 9 Provisions You Need in a Whistleblower Policy
- Yes, California Employers, It Really Is Time to Update Your NDAs
- Settling Employment Cases: Think Beyond Money
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