“Whistleblower” Retaliation Applies to Private Matters Unrelated to the Whistleblower’s Employment
An employer is prohibited from retaliating against an employee who makes a complaint to a government or law enforcement agency under California law.
Labor Code section 1102.5(b), for example, makes it unlawful for a hospital to terminate a nurse because the nurse complained about a doctor to the Medical Board. It also would be unlawful for an airline to terminate a pilot who reported potential violations of regulations to the Federal Aviation Administration. These are classic “whistleblower” situations, where an employee complains about the conduct of his or her employer. However, a recent case, Cardenas v. M. Fanaian, DDS, Inc., has held that the reach of section 1102.5(b) is not so limited, but applies to matters unrelated to the employer’s compliance with law in operating its business, such as employee reports to law enforcement involving personal matters.
In Cardenas, the California Court of Appeal affirmed a jury verdict and judgment in favor of Rosa Lee Cardenas’ Section 1102.5(b) retaliation claim. Ms. Cardenas worked as a dental hygienist. In celebration of her 25th wedding anniversary, her husband bought her a new, expensive wedding ring. Ms. Cardenas always wore the ring to work, but placed it in the blouse pocket of her scrubs at the start of each work day. One day, she left the ring on a table with her other personal belongings and it disappeared.
For reasons not discussed in the Court’s opinion, Ms. Cardenas believed a coworker had stolen her ring. Ms. Cardenas told her employer that she was going to file a police report against the coworker, but her employer tried to dissuade her from doing so to keep the peace in the office. Ms. Cardenas filed the report anyway, and her employer told her she was “making the situation worse.” About a week or so later, and after a couple visits from the police, the employer told Ms. Cardenas that the situation was causing great tension and discomfort among the staff and he was going to have to let her go.
The case went to trial and the jury found that the employer had retaliated against Ms. Cardenas for filing the police report against her coworker. On appeal, the employer argued (and a dissenting opinion agreed) that Ms. Cardenas’ claim did not fall within the scope of Section 1102.5(b) because she did not file the police report to address any violation of law by her employer or corporate wrongdoing. Rather, Ms. Cardenas filed the report for personal reasons so that she could either obtain the return of her ring or make a claim under her homeowners’ policy. The Court of Appeal rejected this argument, and held that the situation fit the plain language of Section 1102.5(b), which prohibits employers from retaliating against an employee for reporting a violation of a state or federal statute to a government or law enforcement. The Court noted that Section 1102.5 made “no mention” that its protections were limited to reports of unlawfulness concerning an employer‘s enterprise, operations or practices. Ms. Cardenas made a complaint to a law enforcement agency, and the employer terminated her because of the complaint; therefore, Section 1102.5(b) applied.
Before taking any adverse action against an employee who has filed a complaint with a government or law enforcement agency, employers should consider the potential liability for a retaliation claim, even when the complaint does not directly relate to any unlawful activity by the employer.