Whistleblowing and Hazardous Working Conditions

May 19, 2016

To establish a prima facie case of retaliation, a plaintiff must show that (1) they engaged in a protected activity, (2) that they were thereafter subjected to adverse employment action by their employer, and (3) there was a causal link between the two.  Iwekaogwu v. City of Los Angeles, 75 Cal.App.4th 803, 814 (1999), quoting Flait v. North American Watch Corp., 3 Cal.App.4th 467, 476 (1992).

In order to be protected against discharge, a complainant need only make a good faith complaint about working conditions that they believes to be unsafe. Cabesuela v. Browning-Ferris Industries of California, Inc., 68 Cal.App.4th 101, 1009 (1998) [emphasis added].  An employer is prohibited from retaliating against a complainant who made “a bona fide oral or written complaint to [their] employer of unsafe working conditions, or work practices, in [their] employment or place of employment.” Labor Code § 6310(b) [emphasis added].

A firefighter’s complaint about a “hazardous environment” resulting from responding to calls on his own, for instance, constituted a “bona fide oral or written complaint … with reference to employee safety or health … [to plaintiff’s] employer … of unsafe working conditions, or work practices, in [plaintiff’s] employment or place of employment ….” under California Labor Code § 6310.  Oyarzo v. Tuolumne Fire Dist., 955 F. Supp 2d 1038, 1099 (E.D. Cal. 2013).

It is true that a plaintiff must oppose their employer’s safety practices, rather than simply discuss them in order to state a claim under Labor Code § 6310.  Luchetti v. Hershey Co., 412 Fed.Appx. 978 (9th Cir. 2011). 

As noted above, one firefighter’s complaint about the “hazardous environment” stemming from being forced to respond to calls on his own was a protected activity.  However, the Eastern District of California found that Plaintiff Oyarzo’s activity was not protected because as a Fire Chief, it was his job to report all types of conditions to the Fire Board and “all such alleged safety violations were Oyarzo’s direct responsibility [to report] and therefore [could not] constitute “whistleblowing” activity under the Labor Code.”  Oyarzo, 955 F. Supp 2d at 1098-1099.

Reporting an activity can constitute protected conduct even if the employee is simply doing their job in making the report.  McVeigh v. Recology San Francisco, 213 Cal.App.4th 443, 469 (2013); Colores v. Board of Trustees, 105 Cal.App.4th 1293, 1312 (2003).

California recognizes a tort claim for wrongful discharge in violation of public policy.  Tameny v. Atl. Richfield Co., 27 Cal.3d 167, 172 (1980).  Wrongful termination cases involving a Tameny cause of action are limited to “those claims finding support in an important public policy based on a statutory or constitutional provision.”  Green v. Ralee Eng. Co., 19 Cal.4th 66, 79 (1998).  Firing an employee for protesting unsafe working conditions violates fundamental public policy favoring workplace safety, therefore, the discharged worker may sue for wrongful discharge (in addition to statutory remedies under Cal/OSHA).  Boston v. Penny Lane Centers, Inc., 170 Cal.App.4th 936, 947 (2009).

Courts have recognized that a Tameny claim may be viable in cases that approximate but do not meet the requirements of Labor Code § 1102.5, including retaliatory discharge after an employee filed an internal complaint.  Collier v. Superior Court, 228 Cal.App.3d 1117, 1123–24, 1127 (1991).  The Collier court reasoned that even though Labor Code § 1102.5, as it existed prior to 2014, addresses employee reports to public agencies rather than to the employer and thus does not provide direct protection to a plaintiff who makes an internal report, Labor Code § 1102.5 evinces a strong public interest in encouraging employee reports of illegal activity in the workplace, such that a plaintiff may still have a viable Tameny claim even when they do not have a viable claim under Labor Code § 1102.5. 

Author: Richard Hoyer
Category: Retaliation, Wrongful Termination
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