San Francisco Employment Law Firm Blog

Terminating an employee can be a difficult and even devastating experience to the terminated worker, but it's also not an easy decision for the manager / employer charged with the duty of retaining and discharging employees. It's not uncommon for an employee termination to seem unfounded or irrational. For example, an employer might decide to discharge a more senior employee or a good performer while retaining another worker who has performance issues or even many unexcused absences because the latter has a closer relationship with the employer, or compensates for his deficiencies in other ways.

If the aggrieved employee is an at-will employee, this kind of seemingly unfair preferential treatment is only illegal if the reason for it is the fact that the adversely affected employee either (1) belongs to the protected category, such as gender, sexual orientation, disability, religion, ethnicity, familial status; or (2) because the employee exercised protected rights, such as complaining about workplace harassment or unsafe working environment (internally or to the outside government agencies), reporting criminal conduct, filing a workers compensation claim, participating in a union/political activity, serving on a jury, etc.

Since the at-will employment doctrine states that an employee can be terminated for any reason, no reason, or arbitrary reason, except illegal reason, terminating one employee and keeping the other because the employer likes the second employee better for his own, personal reason, assuming that no sexual favoritism is involved, generally does not violate California of Federal employment laws.

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Posted In: Wrongful Termination

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In the absence of an agreement otherwise a worker in California is generally presumed to be an "at-will" employee. This means that an employee can be terminated for any reason, no reason or arbitrary reason as long as it's not an illegal reason (such as discrimination, harassment, retaliation, etc.) Once an employee establishes that he/she might have been terminated for unlawful reason, an employer will be required to defend its termination by demonstrating "just cause." Employers covered by collective bargaining agreements are also typically required to demonstrate "just cause" for any disciplinary action involving a covered employee. Thus, it is important to understand the "just case" term of art. In determining whether the employer had just cause for terminating an employee, the following questions should be asked:

* Did employer's action violate any statute or policy?
* Did the company investigate to determine whether the employee actually violated the rule for which he was disciplined or terminated?
* What the company's investigation fair and objective?
* During the investigation, did the company obtain substantial evidence or proof that the employee was guilty?
* Has the company applied its own rules and discipline, as outlined in employee handbook or similar materials, fairly and consistently to all employees?
* Is the degree of discipline reasonable proportional to the seriousness of the proven offense or violation in light of the gravity of that offense as compared to overall performance, track record and length of service of that employee?
* Has the employee been honestly informed of the reasons for discipline or termination?

Generally, especially in the context of unionized employee covered by CBA (collective bargaining agreements), just cause for termination is something more serious than a minor misconduct or isolated incidents of negligence, as there is both semantic and legal difference between "cause" (which can be any cause) and "good cause."

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Posted In: At-Will Employment , Investigation at Workplace , Just Cause Termination , Wrongful Termination

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Under California Law, "sick leave" means "accrued increments of compensated leave" provided by an employer for an employee's use because of:
* the employee's physical or mental condition that makes the employee unable to perform his duties;
* the employee's need to obtain a professional diagnosis or treatment for a medical condition; or
* other medical reasons. Cal. Labor Code section 233(b)(4).

"Sick leave" does not include benefits provided under the ERISA plan, insurance benefits, workers' compensation benefits, unemployment compensation, disability (SDI) payments, or other benefits not payable from the employer's general assets. Cal. Labor Code section 233(b)(4)(c)

An employer policy that counts sick leave taken to care for a child, parent or spouse as an absence from work that could lead to discipline or discharge is a per se violation of Cal. Labor Code section 233, entitling aggrieved or wrongfully terminated employee for appropriate legal relief as provided by section 234.

In the event of a violation of section 233, an employee is entitled to reinstatement, actual damages or one day's pay, whichever is greater, and to reasonable attorney fees as per section 233(d).

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Posted In: Sick Leave , Wrongful Termination

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FEHA (Fair Employment and Housing Act) prohibits disability discrimination and pregnancy based discrimination in California. To prove a wrongful termination claim based on pregnancy discrimination and failure to provide reasonable accommodations to a pregnant employee at workplace, first she has to prove that her condition constitutes disability within the meaning of the statute Cal. Gov. Code section 12940(m) which prohibits employment discrimination based on actual or perceived disability, as normal pregnancy itself is not considered disability entitling an employee to special accommodations.

Under California Fair Employment and Housing Act (FEHA) physical disability is defined as a condition that limits a major life activity. Thus, the female worker must show that a condition arising out of her pregnancy limited one or more of her major life conditions. An employee must specific state which of her daily functions was impaired by the condition arising out of pregnancy and what exactly she was not able to do in a course of her daily life that she would have otherwise been able to do.

In one case, the court rejected the employee’s argument that her morning sickness during pregnancy constituted disability entitling her to the protection of pregnancy and disability discrimination laws. The court stated that according to Fair Employment and Housing Commission regulation 7291.2(g) a woman is “considered to be ‘disabled by pregnancy’ if she is suffering from severe ‘morning sickness'.”

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Posted In: Disability Discrimination , Disability at Workplace , Pregnancy Discrimination , Wrongful Termination

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The most significant immediate measure and employer may and should take in response to sexual harassment or another kind of harassment allegation by one employee against the other or against his or her supervisor is to launch a prompt and fair investigation to determine whether the complaint is justified. The employer must take temporary steps to deal with the situation while it determines whether the complaint is justified. Swenson v. Potter (9th Cir. 2001) 271 F3d 1184. The greater the potential injury to the complaining employee, the greater care the employer must take in investigation harassment allegations and preventing the alleged harassment from recurring or escalating.

The employer must conduct an investigation even if the alleged harasser denies the accusation and the victim wishes to drop the matter. The employer must investigate from "worst case scenario" in order to avoid exposing other employees to the alleged misconduct. Malik v. Carrier Corp. (2nd Cir. 2000) 202 F3d 97. A reasonable investigation does not require a trial-type proceeding. The inquiry may be conducted informally in a manner that will not unnecessarily disrupt the company's business.

If you believe that you are or have been a victim of harassment at work place in San Francisco, San Mateo/South Bay or East Bay regions, you might be entitled to legal protection. If you would like to discuss your situation at workplace, feel free to contact us by phone or by filling out the form on this page.

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Posted In: Harassment at Workplace , Investigation at Workplace , Workplace Harassment , Wrongful Termination

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Once an employer becomes aware of the need for accommodation for a qualifying disabled employee, that employer has a mandatory obligation under the law to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. An appropriate reasonable accommodation must be effective in enabling the employee to perform the duties of the position.

The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. A party or an employer that obstructs or delays an interactive process may be found liable for acting in bad faith.

The duty to accommodate disability is a continuing duty that is not exhausted by one effort. The EEOC Enforcement Guidance notes that an employer must consider each request for reasonable accommodation, and that if a reasonable accommodation turns out to be ineffective and the employee with disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. This rule fosters the framework of cooperative problem solving contemplated by the law, by encouraging employers to seek to find accommodations that really work, while preventing employees from requesting the most drastic and burdensome accommodations possible.

One kind of evidence that an employee is wrongfully terminated because of his or her disability is evidence that that employee was warned and reprimanded for issues in his performance that were caused by his or her disability. As the 9th Circuit noted in Humphrey v. Memorial Hospital Ass'n 239 F.3d 1128 (2001), conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination. The link between disability and (wrongful) termination is particularly strong where it is the employer's failure to reasonable accommodate a known disability that leads to discharge for performance issues resulting from that disability. Id.

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Posted In: Disability Discrimination , Interactive Process , Reasonable Accommodations , Wrongful Termination

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Alameda county is one of the most ethnically diverse areas, which brings lots diversity into workplace. With all wonderful benefits of having a variety of people from different backgrounds and cultures at workplace, this sometimes inevitably leads to animosity and conflicts between different racial groups and claims of race discrimination, racial harassment, and wrongful termination claims based on racial conflicts and claims of retaliation.

Employers who employ two or more large groups of workers from different racial backgrounds are likely to find themselves in situations where members of two or more racial minority groups of employees complain that the members of the other ethnic group engage in unlawful racial discrimination and harassment. For instance, it is not uncommon for the County of Alameda government agencies in Oakland, Alameda and surrounding cities to face these kinds of issues. An employer may find itself in a predicament in such circumstances. On one hand, the employer has an affirmative obligation to conduct a prompt and thorough investigation of harassment and discrimination complaints as FEHA (Fair Employment and Housing Act Requires), and take all appropriate measure to remedy harassment/discrimination. On the other hand, if the employer takes action against the alleged harasser, such as suspension, administrative leave, or termination, the company/agency runs the risk of being sued for racial discrimination by the disciplined employee.

This is one of the major reasons why it is so important for an employer to make sure that the conducted investigation is as thorough, unbiased and well documented as possible, as it will serve as a strong defense against discrimination and harassment allegations, showing that the employer too all reasonable steps to prevent/remedy discrimination and harassment.

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Posted In: Racial Harassment , Workplace Discrimination , Workplace Harassment , Wrongful Termination

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California Family Rights Act (CFRA) is a part of FEHA (Fair Employment and Housing Act) and generally provides that it is unlawful for an employer to refuse an employee's request for up to 12 weeks of family care and medical leave in a year. An employer is also forbidden from discharging or discriminating against an employee who requests family leave or medical leave. Family care and medical leave includes leave because of an employee's own serious health condition that makes the employee unable to perform the functions of his position. "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either of the following: (a) Inpatient care in a hospital, hospice, or residential care facility; (b) Continuing treatment or continuing supervision by health care provider.

To be eligible for CFRA leave, an employee must have more than 12 months of service with the employer and have at least 1,250.00 hours of service with the employer during the previous 12 months of employment. It is important to note that this condition must be satisfied not at the time the employee suffered an adverse employment action (termination, suspension, etc.), but whether the employee was eligible to take CFRA leave when she took the leave that resulted in adverse employment action.

It is also unlawful to retaliate against an employee for exercising his rights under CFRA. The Dudley v. Caltrans 90 Cal.App.4th 255 was the first court to outline the elements of proving CFRA retaliation, adopting FMLA retaliation analysis used by the federal courts. The court concluded that the elements of retaliation claim under CFRA are as follows: (1) the defendant was the employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercise her right to take leave for a qualifying CFRA purpose, and (4) the plaintiff suffered an adverse employment action, such as termination, fine, demotion, or suspension because of her exercise of her right to CFRA leave.

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Posted In: California Family Rights Act (CFRA) , Family Medical Leave Act (FMLA) , Retaliation , Wrongful Termination

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The California Supreme Court held that high blood pressure (hypertension) may be a protected disability at workplace within the meaning of Fair Employment and Housing Act (FEHA) in American National Insurance Co. v. Fair Employment and Housing Commission 32 Cal.3d 603 (1982). In that case, an insurance company terminated a sale and debit agent because of his elevated blood pressure. The Supreme Court held that high blood pressure may be a "physical handicap" under the FEHA, since the statutory definition of the protected disability under Cal. Gov. Code section 12926(h) permits consideration of all handicaps that are physical, and not only those are are presently disabling.

In explaining section 12926(h), the court resorted to the literal definition of the term "handicap" as defined in Webster's dictionary: "physical handicap includes ..., or any other health impairment which requires special education or related services. The Court further emphasized that the law protecting workers from being discriminated based on their disability clearly was designed to prevent employers from acting arbitrarily against physical condition that, whether actually or potentially handicapping, may present no current job disability or job-related health risk.

Thus, the mere fact that a worker isn't constantly experiencing the symptoms of high-blood pressure, doesn't mean that he is not disabled within the meaning of FEHA, as he or she does face an actual risk of experiencing those disabling symptoms.

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Posted In: Disability Discrimination , Disability at Workplace , Wrongful Termination

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The second district made an important distinction between disability discrimination and failure to provide reasonable accommodations in Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000). In that decision, the court noted that the elements of a failure to accommodate claim are similar to the elements of disability discrimination under under California Gov. Code section 12940(a), but there are several important differences. For the purposes of the failure to accommodate claim, the employee does not need to show that he is able to perform the essential functions of his present job (like it is necessary to show in order to prove discrimination), but only that he or she is able to perform the duties of the job which he or she is seeking to be reassigned to.

Even more importantly, in claims for failure to accommodate, it does not matter whether the employee was terminated, suspended or otherwise disciplined in retaliation for his disability (like it is required in discrimination claims). The employer's mere failure to reasonable accommodate a disabled individual is a violation of the statute in and of itself. Cal.Gov. Code section 12940(k).

In other words, prevailing on a disability discrimination claim is harder than proving failure to accommodate, because it requires showing that the employee suffered an adverse employment action, and that there is a causal link between the disability/medical condition and the adverse employment action, while no adverse employment action needs to be shown in order to prevail on a separate claim for failure to provide reasonable accommodations to a disabled worker.

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Posted In: Disability Discrimination , Fair Employment and Housing Act (FEHA) , Interactive Process , Reasonable Accommodations , Wrongful Termination

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California statutes prohibiting retaliation bar termination of (or other adverse employment action against) employees asserting their legally protected rights, exercising political affiliations, opposing unlawful discrimination at workplace, or seeking statutory redress (such as investigation of discrimination, harassment, etc.)

To show retaliation under California Fair Employment and Housing Act (FEHA), an employee must show that (1) he or she engaged in protected activity under FEHA; (2) he or she suffered an adverse employment action (such as demotion, transfer, suspension, termination or other action by the employer that materially affects the terms, conditions, or privileges of employment, and/or would tend to discourage a reasonable employee from complaining about the unlawful conduct at workplace); and (3) there is a causal connection between the protected activity and the adverse employment action.

FEHA specifically prohibits an employer from retaliating against employee for opposing any unlawful discriminatory practice prohibited by FEHA, and filing a complaint, testifying, or assisting in any proceeding under FEHA.

Note, that the great power of the anti-retaliation law is in that the employee only needs to show that he or she had a "reasonable belief" that the employer practice that the employee was opposing was unlawful. It doesn't matter that a court later determines later that the practice complained of, or opposed to, is actually not illegal, as the California Supreme Court held in Yanowitz v. L'Oreal USA, Inc. (2005) 36 C4th 1028, 1043.

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Posted In: Retaliation , Wrongful Termination

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The California Fair Employment and Housing Act (FEHA) provides a non-exhaustive list of possible accommodations that an employer may consider to accommodate a qualified disability or medical condition of an employee. These typical reasonable accommodations include, but are not limited to:

• Making facilities accessible to and usable by disabled individuals;
• Job restructuring (modifying daily duties of an employee);
• Offering part-time or modified work schedules (to put less physical stress or allow time for medical appointments related to the disability);
• Reassigning to a vacant position;
• Acquiring or modifying equipment or devices (such as ergonomic keyboards, chairs, and lifting devices);
• Adjusting or modifying examinations, training materials or policies;and
• Other similar accommodations for individuals with disabilities as per California Government Code § 12926(n).

Because the above list is non-exhaustive and a range of other accommodations may be considered in the interactive process with an employee which employer must engage into by law, California courts look to cases decided under the ADA and Rehabilitation Act for guidance. Prilliman v. United Air Lines, Inc.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Disability at Workplace , Interactive Process , Reasonable Accommodations , Wrongful Termination

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California workplace operates under the basic presumption that in the absence of agreement otherwise, a worker is an at-will employee. This means that an employee can be terminated for any reason, arbitrary reason, or no reason, but not for illegal reason such as discrimination, harassment, and retaliation. This presumption is codified in California Labor Code section 2922, which provides that an employment, having no specified term, may be terminated at the will of either party on notice to the other.

This presumption of at-will employment may be superseded by an express or implied contract limiting the employer's right to discharge employee. The landmark California Supreme Court case on the issue of existence of implied employment contract is Foley v. Interactive Data Corporation (1988). In that case, the Court stated the general principle that courts seek to enforce the actual understanding of the parties to a contract, and in so doing may inquire into the parties' conduct to determine if it demonstrates an implied contract. The Court further noted that in the employment context, several factors may be considered to determine whether implied employment contract existed, including (1) personal policies or practices of the employer; (2) the employee's longevity of service; (3) actions or communications by the employer reflecting assurances of continued employment; and (4) the practices of the industry in which the employee is engaged.

The Foley court, considering the above factors, came to the conclusion that there was an implied contract to not terminate employment where the employee, who worked for his employer for over 6 years, received excellent performance evaluations and promotions, was told that if he was going to do a good job, his future was secure, and where the employer admitted that it did not normally fire employee without cause.

These factors, however, don't have much weight if the employee actually signed a written form, stating that he understands that he is an at will employee and may be terminated at any time with or without cause.

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Posted In: At-Will Employment , Contract Claims , Employment Contracts , Wrongful Termination

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Numerous California laws protect employees against retaliation by their employers. Most of the anti-retaliation statutes protect employees from adverse employment actions ( i.e. demotion, transfer to a less desirable workplace, suspension, administrative leave or termination) for exercising their rights under Fair Employment and Housing Act (FEHA), Occupational Safety and Health Act (OSHA), protected political activities, and wage claims.

One of the most common kinds of unlawful retaliation to which California employees are often subjected is FEHA retaliation. FEHA prohibits an employer from retaliating against employee for:

* Opposing any unlawful discriminatory practice prohibited by FEHA; or
* Filing a compliant, testifying, or assisting in any proceeding under FEHA.

To maintain retaliation claim based on oppoisng an unlawful practice, employee only need to show that he or she had a "reasonable" belief that the employment practice he or she protested was unlawful. As the California Supreme Court pointed out in the leading case on the issue, Yanowitz v. L'Oreal USA, Inc. (2005), firing an employee who refused to follow order which he reasonable believed was unlawful, was unlawful retaliation and constituted wrongful termination even though it was later found that the order given did not involve anything illegal.

It is important to point out that unlawful retaliation doesn't always involve wrongful termination. Under FEHA an "adverse employment action" is any action that materially affects the terms, conditions, or privileges of employment. Thus, even unfavorable transfer to a less desirable workplace or any other less drastic action by employer than firing an employee may be considered unlawful retaliation.

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Posted In: Wrongful Termination

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Different companies and employers have a very different approach to handling disciplinary actions against their employees. While some company simple don't have any formal policy regarding write ups, warnings and other disciplinary actions against employees, other employer have a clear policy of progressive discipline that generally shall be followed by the employer prior to taking a more significant adverse employment action against an employee, such as transfer, demotion, suspension, or employment termination.

Many workers become very upset, stressed out and nervous about the stability of their employment when they get written up or get a negative performance review, especially if they believe (and have good reasons to believe) that the write-up was unfounded or retaliatory (in response to an exercise of a legal right by an employee such as taking approved medical leave, serving on a jury duty, filing a workers compensation claim, complaining about harassment at workplace, etc...) Many employee are afraid of disputing their write-up, believing that any further escalation of the situation will lead to termination. Thus, the prefer to remain quite and passive. However, in the vast majority of cases, this is not a good strategy to follow for two main reasons: first, if you are reprimanded and written up for no reasons, chances are that your supervisor already has a plan to get rid of you and simply creating the necessary paperwork to make it comply with the company's policies regarding discipline and termination which are usually outlined in the handbook. Secondly, but not contesting the write-up, you practically admit the allegations/accusations made in the disciplinary documentation, which will make it much harder to argue later that your termination was not justified and was motivated by unlawful factors.

Thus, it is very important that upon receipt of a repriment, a warning letter, or a negative review, you submit a rebuttal as you are entitled, in which you will address and dispute every allegation made specifically. You should also seriously considering requesting your employer to conduct an investigation into the merits of your negative review. This means that responding with "this is not true" is not sufficient, and you should explain why the facts in the write-up are not correct and suggest your versionof the events/conduct that is subject of the negative performance review. This will build your own paper-trail which often proves to be useful or even crucial in handling a wrongful termination claim.

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Posted In: Wrongful Termination

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An issue often arises in connection with the off-duty conduct of employees of whether an employee can be disciplined or even discharged by his employer based on such off-duty conduct. This answer to this question will often depend on the facts surrounding the employee's conduct. Where the conduct is offensive and egregious, however, the courts will often rule in the employer's favor.

In a recent New York case, for example, a male nurse employed in a hospital visited the hospital while on vacation. The employee, who was intoxicated, got into a violent scuffle with security guards at the hospital and was terminated. The employee brought action for wrongful termination arguing that his off-duty conduct should not have been considered by the jury. The court disagree, however, holding that his off-duty conduct was relevant to the issue of whether he posed a threat to the safety of others.

Employers should avoid taking adverse action against the lawful off-duty conduct of employees unless:

* The conduct represents a conflict or potential conflict of interest (e.g., working for a competitor or engaging in self-employment in competition with one's employer).
* The conduct impairs an individual's job performance (e.g., drop in an employee's productivity because a second job makes the employee too tired to work at expected performance levels).
* The conduct puts the employee in a position where his judgment or authority can be compromised (e.g., a manager dating a subordinate and having authority for employment decision affecting that individual.) It is important to note, however, that the adverse employment action against the manager should be based on job-related factors and not his off-duty conduct. Such job-related factors may include a loss in confidence in the manager's ability to manage the subordinate; on-the-job conduct, such as spending excessive time with the subordinate with no business justification; or making decisions that negatively affect other employees and could be in violation of the company's sexual harassment policy (e.g., showing favoritism with respect to a promotion).

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Posted In: Sexual Harassment , Wrongful Termination

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As one California court recently pointed out in Kelly v. Stamps.com Inc. (2005), downsizing alone is not necessarily a sufficient explanation, under the Fair Employment and Housing Act, for the consequent dismissal of a worker. An employer's freedom to reduce its workforce and to eliminate positions in the process, does not mean that it may use the occasion to conveniently get rid of protected workers.

Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release. At least two facts were considered by court as casting serious doubt of discriminatory motive on the employer's decision to terminated a pregnant employee, when the employer tried to argue that the reason for that termination was a reduction in force in the Stamps.com case: (1) the employee's track of excellent performance; (2) hiring a new employee, who was not pregnant, instead of the terminated pregnant woman.

If you have been, or are about to, be laid off due to the alleged downsizing of your employer, but you suspect that the true reason for your termination might be discriminatory and has little to do with the downsizing itself, contact Arkady Itkin - San Francisco employment lawyer to discuss your situation at work.

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Posted In: Workplace Discrimination , Wrongful Termination

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Many employees give in the temptation of accepting a lump sum severance upon termination, even when the lawfulness of that termination is questionable. If you find yourself with an offer of severance, I highly recommend that you take your time to consider the severance offer before you accept it.

One of the common reasons that an employer may offer severance to the employee who is about to be terminated is because the circumstances of the termination are questionable and might give rise to legal action by employee. An employer usually requires an employee to sign General Release of All Claims in exchange for severance compensation. By signing that release, the terminated employee waives any and all rights to pursue legal action against the employer. Often, by accepting the severance package, the employee, gives up on his ability to pursue legal claims that might be ground for a much greater compensation / damages. But even if the employer conduct is not tainted with unlawful practice and termination, your severance offer might be highly negotiable.

Regardless of of the terms or your employment and severance payment, you have the right to consult an attorney when executing the severance agreement (most severance agreements remind the employee that he has the right to be represented by an attorney in accepting the severance contract).

If you would like to discuss the terms of your lay-off/resignation/termination with a qualified professional, contact Arkady Itkin - San Francisco employment lawyer to discuss your employment separation.

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Posted In: Wrongful Termination

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California Labor Code 1102.5 prohibits discharging an employee for disclosing an alleged violation of a statute of public importance to a government or a law enforcement agency. Such a discharge may be grounds for a claim of wrongful discharge in violation of public policy.
The following are examples of "whistleblowing" cases in which such a claim was upheld:
* Reporting to management that the company was not paying overtime wages due to certain of its employees.
* Reporting to governmental agency the employer's improper billing practices with respect to governmental contract.
* Reporting to management that certain executives shipping promotional records were violatating laws prohibiting bribery, kickbacks, embezzlement and tax evasion.
* Reporting discrimination against women and minorities.
* Reporting health and safety violations by an employer.
* Reporting violations of consumer protection laws and immigration laws.

It's important to note that an actual violation is not required for a legitimate whistleblower action. Under the code, an employee's reasonable suspicion of violation is sufficient. In other words, an employee does not need to prove that his employer actually violated the law; it is sufficient if the employer fired the employee for reporting hi "reasonably based suspicion" of illegal activity.

An employee who has been subjected to a whistleblower retaliation at workplace and has been wrongfully terminated as a result of employment may recover a full measure of tort damages in an action for wrongful discharge in violation of public policy, including, in appropriate cases, damages for emotional distress and punitive damages.

One of the greatest powers of section Cal. Gov. Code section 1102.5 is actually in section 1102.6, which states that once the employee met his or her burden of showing that he or she was retaliated against for reporting what was reasonably believed an unlawful conduct, the employer has to prove by clear and convincing evidence that the adverse action taken against employee was not motivated by "blowing the whistle" but by other, legitimate reasons, such as downsizing or restructuring or employee's performance issues.

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Posted In: Whistleblower , Wrongful Termination

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