Someone who successfully sues an employer on a whistleblower case can get front pay, back pay, if the person was terminated.
- Back pay is the amount of compensation the employee would have received if they had not been fired – they can get all of the pay that they would have been entitled to up until the time of the trial.
- Front pay means that if the employee still does not have a job, they can obtain the compensation they would have earned up until a reasonable amount of time that the jury determines that the person should be able to get a job.
Damages are a function of the facts of the case. For instance, it is a lot harder for someone who is a high-level executive to get a new job quickly, whereas, someone with a lower level position usually can find a job more quickly. Typically, there are more lower level jobs out there than there are high-ranking officer type positions.
Q: When the jury is taking into consideration the amount of the front pay, do they ever take into consideration the fact that this person now has on their resume that they’ve been fired for whistleblowing?
Typically, yes. However, it is because we usually bring a “self-defamation” claim as well.
Have you made that argument about the stigma of whistleblowing?
Thankfully, every single one of the clients we’ve represented in a whistleblower case has obtained new employment over the course of the litigation, so we did not have to even make that argument, and we’ve represented quite a few people in these cases.
Noneconomic damages in whistleblower lawsuits
Yes, but these damages — pain and suffering – are available because we bring a derivative claim for violation of public policy. California has a public policy against employers retaliating against people who are whistleblowers. Employees can recover noneconomic damages such as pain and suffering in addition to the front and back pay.
Statutory damages in whistleblower cases
Labor Code Section 1102.5 is effectively California’s Whistleblower statute, which reads as follows:
1102.5.
(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
(d) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.
(e) A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b).
(f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section.
(g) This section does not apply to rules, regulations, or policies that implement, or to actions by employers against employees who violate, the confidentiality of the lawyer-client privilege of Article 3 (commencing with Section 950) of, or the physician-patient privilege of Article 6 (commencing with Section 990) of, Chapter 4 of Division 8 of the Evidence Code, or trade secret information.
(h) An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any acts protected by this section.
(i) For purposes of this section, “employer” or “a person acting on behalf of the employer” includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400.
(Amended by Stats. 2015, Ch. 792, Sec. 2. Effective January 1, 2016.)
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