Can an employee still be protected as a whistleblower under California law if they are not the first to blow the same whistle? Per the California Supreme Court, the answer is yes: “[A] protected disclosure under [Labor Code] section 1102.5(b) encompasses reports or complaints of a violation made to an employer or agency even if the recipient already knows of the violation.”
In The People ex rel. Garcia-Brower v. Kolla's, Inc. (Kolla’s), a nightclub worker complained to her employer that she had not been paid all of her owed wages. In response to her complaint, her employer threatened to report her to immigration authorities, terminated her employment, and told her never to return to the nightclub. After the Division of Labor Standard Enforcement (DLSE) determined that the employer’s actions violated California law, the employer refused DLSE’s proposed remedies of reinstatement, payment of lost wages, and civil penalties. The DLSE then sued the nightclub and its owner for violations of the Labor Code, including a whistleblower retaliation claim in violation of Labor Code section 1102.5(b). Both the trial court and the appellate court found that the DLSE’s section 1102.5(b) claim did not state a valid cause of action because the employer already knew of their unlawful violation and the employee did not report her complaints to a government agency.
Section 1102.5(b) prohibits an employer, or someone acting on their behalf, from retaliating against an employee who...
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