Let’s start off with how not to respond to a whistleblower.
Under Lab C §1102.5(a)–(d), an employer may not:
- Make, adopt, or enforce any rule, regulation, or policy preventing an employee from being a whistleblower;
- Retaliate against a whistleblower;
- Retaliate against an employee for refusing to participate in an activity that would result in either a violation of a state or federal statute or a violation or noncompliance with a state or federal rule or regulation; or
- Retaliate against an employee for exercising the rights of a whistleblower in any former employment.
To establish a prima facie case of retaliation under Lab C §1102.5(d), the employee needs to show that (1) he or she engaged in protected activity; (2) the employer subjected him or her to an adverse employment action; and (3) there is a causal link between the two.
According to the court in Mokler v County of Orange (2007) 157 CA4th 121, proof of retaliation can be proved in two ways. If a plaintiff relies on circumstantial evidence to establish a prima facie case of retaliation and the defendant effectively counters with evidence of a legitimate, nonretaliatory explanation for its acts, then the plaintiff must establish pretext. If the plaintiff relies on direct evidence, a defendant can avoid liability only by proving that the plaintiff would have been subjected to the same employment decision without reference to the unlawful factor; the burden-shifting analysis doesn’t apply.
Now that we’ve reviewed what employer’s can’t do, what’s an appropriate response to a whistleblower? Communication is key. Employers should avoid the temptation to disclose as little as possible about its investigation of the whistleblower’s complaint. Doing so may cause the whistleblower to escalate the complaint outside of the organization. Instead, there should be communication with the complainant, full explanation of the company’s response, and reiteration of its policy of zero tolerance for retaliation.
For guidance on handling whistleblower issues, turn to CEB’s Advising California Employers and Employees, chap 16. CEB has also 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:
- For Retaliation or Whistleblower Claims, Knowing When (and How) to Exhaust Administrative Remedies Is Key
- Employers: 9 Provisions You Need in a Whistleblower Policy
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