It is generally understood that an employer may not retaliate against an employee for “whistleblowing” and alerting authorities that a business has engaged in unlawful activity. Is an employee also protected against retaliation when he or she reports a coworker to the police for suspected theft of personal property? A recent California Court of Appeal published decision, Cardenas v. M. Fanaian, D.D.S., Inc., concluded that the California Labor Code does protect such activity.
Cardenas worked as a dental hygienist in Dr. Fanaian’s dental office. While at work, Cardenas lost an expensive ring, which her husband had given to her in celebration of their 25th wedding anniversary. Cardenas suspected that a coworker had stolen the ring. She and her husband filed a police report. The police visited the office twice to interview employees. According to Cardenas, the dentist discharged her because the police investigation was disrupting the workplace. Cardenas’s ring was found at the office shortly after she was discharged.
Cardenas sued her employer, alleging wrongful termination in violation of public policy and a violation of Labor Code Section 1102.5. Among other things, Labor Code section 1102.5(b) prohibits an employer from retaliating against an employee for disclosing information to a government or law enforcement agency. At trial, the jury found in Cardenas’s favor.
On appeal, the defendant argued that filing a police report accusing a coworker of theft of personal property is not protected activity under Labor Code 1102.5 because the reported activity did not concern wrongdoing by the employer, its operations, or its practices, and because Cardenas’s disclosure was unrelated to protecting public interest.
The appellate court reviewed the code section and concluded that nothing in it required a finding that the reported illegal activity involved a matter of public—rather than personal—interest. Cardenas was only required to prove that she reported a matter to a government authority and that she was subsequently discharged for doing so.
The appellate court also rejected the defendant’s argument that the activity reported to government authorities must relate to employment practices or business operations. The court wrote the following:
Defendant would have us insert additional, limiting language into the statute, namely, that the report to law enforcement must relate directly to the employment enterprise and not private or individual matters. This we cannot do. Even if the Legislature intended to limit the statute’s application to reports of wrongdoing concerning the employer’s enterprise, operations or practices, courts are not authorized to disregard the plain meaning of statutory language in order to conform it to a court’s opinion of legislative intent. That would convert our judicial function into that of a legislative one.
In a dissenting opinion, one justice disagreed with this conclusion. The justice pointed out that in the preamble to Labor Code Section 1102.5, “the Legislature expresses concern about the need to deter ‘corporate wrongdoing’ and also expresses that the public policy of the state is to ‘encourage employees’ to inform law enforcement when they have reason to believe ‘their employer’ is violating the law.” The majority opinion noted the preamble language, but concluded that it could not override the broader language in the code section itself.
Key Takeaways
This court found that Labor Code section 1102.5 broadly protects employees from retaliation for making reports to law enforcement agencies. Where an employer has knowledge that an employee has filed a complaint with a government agency, it should carefully consider the potential for liability before taking adverse action, even when the employee’s report does not relate to any unlawful activity by the employer.
