Whistleblowing and Public Policy Part 1 - Aiman-Smith & Marcy
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Whistleblowing and Public Policy Part 1

There are two types of whistleblowing case and I’m going to talk about them in two separate posts.

First, there is the type of case where your whistleblowing or the employer’s violation of law, forms the basis of your wrongful termination case.

For example, an employer might condition employment on your performing an illegal act, such as requiring that a retail clerk overcharge customers, or requiring a truck driver to dump toxic waste illegally, or requiring a restaurant employee to sell outdated food to customers. If you refuse, the employer fires you.

Alternatively, the employer tells you that it’s your job to cheat the customer, or to dump the toxics, or to sell the outdated food. With no choice but to violate the law or quit, you quit.

In either of these cases, you would probably have a good wrongful termination case.

But let’s discuss a couple of wrinkles.

First, and surprisingly you don’t have to be right about whether the employer is actually breaking the law. If you, in good faith and reasonably, tell the employer that you believe the customer is being cheated, or the truck load contains toxics, or the food is outdated, and you get fired for reporting it, that is still a violation of public policy and a wrongful termination, even if you were wrong and no violation was actually occurring.

However, the “violation” has to a violation of an actual law; it can’t just be a violation of the company’s own internal policies. For example, if you work in a coffee shop where the company has a policy not to sell coffee after it’s 30 minutes old, but your supervisor tells you to wait an hour before brewing a fresh pot, that’s not illegal, just a violation of the company’s policy. But change the facts a little bit: if the 30 minute policy is being advertised to the public, and you are told to cheat the customer by selling hour-old coffee, then you would have a legal violation and a wrongful termination.

Another question is: to get whistleblower protection from termination, do you have to complain to or inform the government, the press, or the employer? If you do have to tell the employer, who do you tell? A co-worker? A supervisor? The president? HR? That’s a complicated questions that can vary with the facts but the basic answer is you have to have told someone higher up in the company than you.

As you can see from these examples the idea is simple: if you’re being forced to violate the law as condition of your job, you may have a very good case. But there are lots of wrinkles and issues.

Aiman-Smith & Marcy is a boutique plaintiffs’ law firm based in Oakland, California. Our attorneys specialize in representing employees and consumers in individual and class action lawsuits for wrongful termination, discrimination, and for failure to pay wages, including overtime, meal and rest breaks, and failure to reimburse for expenses as required by law or agreement.