National Whistleblower Appreciation Day: Honoring the Everyday Heroes

Outten & Golden LLP
July 30, 2021

Outten & Golden LLP, By Tammy Marzigliano, Pawanpreet Dhaliwal, and Brittany Arnold

Daryl Woodruff was an interim superintendent and contender for a leadership position at PG&E. He was fired for fabricated performance issues after he spoke his conscience twice. First, he stood up for himself and his colleagues by complaining of race discrimination to the company’s human resources department. Second, he reported his good faith belief that other PG&E leaders had failed to inspect defective, potentially explosive electrical transformers and lied about it, placing the public at risk.  In 2018, a jury vindicated Mr. Woodruff, finding that PG&E terminated him in retaliation for his whistleblowing. See  Special Verdict Form,  Woodruff v. Pac. Gas & Elec.,  No. 6 Civ. 556125,  2018 WL 3601951 (Cal. Super. Ct. July 20, 2018)

Dr. Jan Weber was the chief of a county’s child and adolescent psychiatry department. Dr. Weber repeatedly voiced his sincere belief that his employer provided unsafe patient care to children in psychiatric distress and inadequate staffing and security in mental health units, among other concerns. Although his employer called him   difficult ” troublemaker ” and terminated him for bogus reasons, he ultimately prevailed at trial and was awarded over $1.5 million in damages.  See  Special Verdict  Form,  Weber, v. Cty. of Santa Clara,  No. 01 Civ. 287977,  2018 WL 10730768 (Cal. Super. Ct. Sept. 26, 2018).

Merrelyn Jordon was a Human Resources Manager at a non-profit organization. She believed her employer had a pattern of failing to pay employees wages they were owed and firing them in retaliation for reporting wage and hour violations. She refused to co-sign her employer’s practices, defying her supervisor’s order to terminate a complaining employee for what she believed were sham reasons. The employer falsely accused Ms. Jordon of misconduct and fired her. After she pursued litigation, a jury found in her favor and compensated her for her economic and non-economic damages. See  Amended Judgment on Jury Verdict,  Jordan v. Victor Valley Family Res. Ctr., No. 15 Civ. 00257, 2019 WL 3325990 (Cal. Super. Ct. Jan. 25, 2019).

Jasmin Ortega was a server for Carson Wild Wings. She protested to her supervisor that her employer forced her to do unpaid work and denied her meal and rest breaks, violations of California wage and hour laws. Just days after she complained about these practices, her employer fired her. Ms. Ortega pursued litigation, and a jury ultimately awarded the food service worker $300,000 for her employer’s retaliatory termination.  See  Verdict Form,  Ortega v. Carson Wild Wings, LLC et. al.,  No. BC677388,  2020 WL 1667871 (Cal. Super. Ct. Feb. 11, 2020).

Trevor Murray was a Commercial Mortgage-backed Security Strategist  for UBS Securities. Mr. Murray was pressured by another employee to skew his research to support the Company’s trading and loan origination activities, was reprimanded for publishing an article about falling share prices, and instructed not to publish negative articles about a certain sector. He complained to his supervisor, but the Company took no action to stop the interference. Instead, a month after his complaint, the Company terminated his employment. Mr. Murray filed a lawsuit against his former employer and a jury awarded him $903,300 to make him whole for his employer’s retaliatory conduct.  See  Jury Verdict,  Murray v. UBS Sec. LLC et. al.,  No. 14 Civ. 927, 2017 WL 7000228 (S.D.N.Y. Dec. 22, 2017)

Donald Miles was a managing member and part owner of a demolition company. He discovered that a project supervisor and his team were implementing improper means of asbestos removal, alleged misconduct he reported to the Company. The day after his complaint, Mr. Miles’ employment was terminated. He pursued litigation and a jury found in his favor, awarding damages to make him whole. See  Jury Verdict,  Acosta v. Champagne Demolition LLC,  No. 12 Civ. 1278, 2019 WL 11854763 (Mar. 07, 2019)

Although these employees and professionals come from very different walks of life, they share a commitment to doing the right thing, to advocating for their colleagues, and to protecting consumers, patients, and the public interest. They are whistleblowers, courageous workplace activists who resist unlawful, unsafe, and unethical employer practices, and we honor them today on National Whistleblower Appreciation Day.

Across the country, there is a mosaic of state laws that protect employees like them from retaliation for whistleblowing. California, for instance, has robust statutes that protect workers from retaliation for making good faith health and safety complaints, disclosing what they reasonably believe to be violations of law to their employers or government agencies, and refusing to engage in illegal activity or perform unsafe work.  See  Cal. Labor Code § §6310-6311, 1102.5. New York law prohibits employers from retaliating against their employees for complaining about employers’ violations of laws, rules, or regulations that create a substantial and specific danger to the public health or safety or constitute health care fraud.  See  N.Y. Lab. Law § 740[1].  New York also provides health care employees with additional whistleblower protections, including protection from retaliation for reporting improper quality of patient care.  See  N.Y. Lab. Law § 741. Additionally, in New York State, employees of not-for-profit organizations cannot be fired for raising concerns that an action taken by or within the organization is illegal, fraudulent, or violates any adopted organizational policy . New York’s Not-for-Profit Corporation Law (the N-PCL “), § 715-b.

Additionally, Federal law provides various protections for whistleblowers across many different industries. For example, employees of public companies are protected against retaliation for raising concerns about conduct they reasonably believe is a violation of applicable law, including mail fraud, wire fraud, and securities fraud.  See  Sarbanes-Oxley Act ( SOX “), 18 USC § 1514A.  People in all industries are protected against retaliation regarding concerns about what they reasonably believe relates to   violations of federal securities laws ““ with caveat that they must raise the concern directly with the U.S. Securities and Exchange Commission.  See  Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ( Dodd-Frank “), 15 USC § 78u-6. Employees in all industries are protected against retaliation for reporting   fraud on the government.[2] See  False Claims Act ( FCA “), 31 USC § 3730(h). Although this statute is broad enough to cover employees across industries, these claims are most common among pharmaceutical companies (often involving fraudulent Medicare or Medicaid billing) and government contractors (often involving fraudulent billing under government contracts).  Finally, private employees are protected against retaliation for complaining about certain occupational hazards in the workplace.  See  Occupational Safety and Health Act ( OSH Act “), 29 USC § 660(c).

Each law has its own definition of protected activity, and not every complaint or disclosure triggers anti-retaliation protections. If you are concerned about an unlawful, unsafe, or unethical practice, consider consulting with an attorney or other workplace advocate as you prepare to make your complaint. If you feel like you have been subjected to retaliation for whistleblower activity, we urge you to contact an attorney or other workplace advocate immediately. Attorneys in Outten & Golden’s Whistleblower Retaliation Practice Group may be able to help.

[1] The New York State Legislature recently passed legislation pending the Governor of New York’s signature that would broaden protections under this statute.

[2] Note that the law in this area, as others, is nuanced and requires an individual assessment, and consideration of the governing jurisdiction, to determine whether a viable claim exists. Consulting with legal counsel is important to determining whether legal protections exist.