Whistleblowing Retaliation in California: Protected Activities

As a member of the fire department, you are entitled to a workplace free from unlawful retaliation.  One of the most misunderstood legal principles is what activity is legally protected, and what whistleblowing activity is not.  At the core of this principle, you must understand what whistleblowing is.  Whistleblowing is making known to an authorized recipient – whether it be risk management, your superiors, or city council – of some condition, issue, corruption, or other wrongdoing.  It is called whistleblowing because the public safety member is essentially “blowing the whistle” on some wrongdoing an employer or its agents are engaging in.  California has several protections for whistleblowing because the State wants to empower employees to be free to call out wrongdoing without fear of retaliation. 

Not all retaliation is unlawful.  The distinction between lawful and unlawful retaliation stems from the activity the member is reporting, and whether it is protected by law.  Understanding this difference is crucial before you decide to file any grievances with your employer, because if you report an activity that is not expressly prohibited by statute, your employer may retaliate against you for making such grievance and there could be no legal recourse for you.

In California, to establish a prima facie case of whistleblower retaliation, a member must show that he or she was subject to an adverse employment action (i.e., demotion, termination, failure to promote) after engaging in a protected activity.   The employee has the burden of proof to show the employer’s adverse employment action was a result of the employee’s protected whistleblowing.  In California, there are several statutes under the Government Code, Labor Code, Health & Safety Code, and other laws that distinguish what whistleblowing activity is protected.  Most commonly used is California Labor code section 1102.5, which protects any employee who reports a violation of state or federal law.  This means if you file a grievance or make a report about your employer and/or any of its agents (i.e., upper management) engaging in, or possibly engaging in, a violation of state or federal  law, you cannot be retaliated against.  When there is a violation of law, California Labor Code section 1102.5 makes it clear you will be protected from retaliation.  Before making any grievance, it is important to understand what courts have decided to mean “state or federal law,” so you can properly assess whether your grievance will guarantee you be free from retaliation.  

As a charter city, Long Beach has adopted its own municipal code and local ordinances.  It is important to note “municipal statutes do not qualify as state statutes within the scope of § 1102.5(c) unless there is some enabling provision, for example, a municipal statute or rule stating that the intent of the city is to have its local laws treated as statewide statutes for purposes of this section.”  (Edgerly v. City of Oakland, (2013) 211 Cal. App. 4th 1191, 1201.)  Often, public safety members will file grievances regarding personnel matters and/or local policies.  These are not protected by California Labor Code section 1102.5.  In, Mueller v. County of Los Angeles (2009) 176 Cal. App. 4th 809, a firefighter sued the county, alleging that he had been retaliated against after expressing disapproval of a decision to transfer two firefighters in the department to another division. The court explained that “[s]ection 1102.5 of the Labor Code requires that to come within its provisions, the activity disclosed by an employee must violate a federal or state law, rule or regulation. [Citation] … [T]his case is not about perceived violations of federal or state statutes, rules or regulations but rather about perceived violations of the department’s own policies which are local policies.” ( Mueller at pp. 821–822.)  

Similarly, in Carter v. Escondido Union High School Dist. (2007) 148 Cal.App.4th 922, a probationary high school teacher and basketball coach sued for wrongful termination after the district refused to renew his contract. (Id. at p. 925, 56 Cal.Rptr.3d 262.) The teacher alleged, among other things, that he had “blow[n] the whistle” by complaining to the school’s athletic director that another coach had recommended a protein shake to a student that had made the student sick. (Id. at p. 933, fn. 13, 56 Cal.Rptr.3d 262.) The court held that such conduct was not protected by section 1102.5 because the disclosure did not involve a violation of any federal or state statute, rule, or regulation. (Carter, supra, p. 933, 56 Cal.Rptr.3d 262.) As the court explained, “Carter’s disclosure here was not whistleblowing under section 1102.5, but rather a routine ‘internal personnel disclosure’ that was, at its core, a disagreement between the football and basketball coaches about the proper advice to give to student athletes. This type of disclosure is not encompassed by section 1102.5 ….” ( Id. at p. 934, 56 Cal.Rptr.3d 262.)The main takeaway from this case is that not all grievances are protected.  Most grievances about managerial concerns, personnel decisions, or general management of a department are not going to be protected.  Instead, to ensure any grievances are protected you must make a specific complaint to a superior and/or risk management about some legal wrongdoing.

If your grievance is not a direct violation of state or federal law, it still may be protected.  California Labor Code section 1102.5 is not the only applicable statute that covers what subject matter is protected.  Under the California Fair Employment Housing Act (FEHA), any action an employee takes to report, oppose, or otherwise address discrimination or harassment based on a protected characteristic, such as filing a complaint, testifying in an investigation, requesting reasonable accommodations, or intervening to stop harassment guarantees the member will not be retaliated upon by their employer.  Protected characteristics under FEHA include but are not limited to, age, ancestry, color, religious creed, disability, genetic information, gender, gender identity, gender expression, martial status, medical condition, military or veteran status, national origin, race, religion, sex, sexual orientation, ect…  A comprehensive list can be found in California Government Code section 12940. 

There are also protections for those engaged in political activity under California Labor Code section 1101 and 1102.  The test of “political activities or affiliations” within this section includes such activities that are related to or connected with orderly conduct of government and peaceful organization, regulation, and administration of government.  (Lockheed Aircraft Corp. v. Superior Court of Los Angeles County (1946) 28 Cal.2d 481.)  This includes union activity. (Glenn v. Clearman’s Golden Cock Inn, Inc. (1961) 13 Cal. Rptr. 769, 192.) 

Additionally, there are protections against retaliation for a member reporting safety violations, reporting FLSA violations, discussing working conditions, and more.  A comprehensive list of protected activity against retaliation can be found here:  https://www.dir.ca.gov/dlse/howtofilelinkcodesections.htm.  However, please note that not all retaliation on this list can be brought forward as a civil lawsuit against a local municipality.  Any claim will be subject to scrutiny under the California Government Torts Claim Act, so if you feel like you have suffered retaliation that falls within the scope of one of these protected activities, please consult an attorney to see the correct jurisdiction and/or whether any affirmative defenses bar recovery.