[COLUMN] Firing of employee who reported wage violations violated whistleblower retaliation law

Q: MY co-workers and I have been having an issue getting our paychecks on time from our manager. Sometimes we would go more than a month without getting paid, which I know is illegal. When the Regional Manager—our manager’s boss—came to visit, I took the opportunity to let him know about the late paychecks. I thought he would help make sure that it doesn’t happen anymore.

Instead, he accused me of making trouble for the company and fired me. He didn’t even look into it; he just said that he’s known my manager for a long time and couldn’t believe what I said. Is there any protection in the law against my getting fired like that?

A: Yes, I believe you may have been the victim of unlawful whistleblower retaliation. First of all, you are correct that not paying employees their wages for more than a month is against California law. Under Labor Code Section 204, employers are required to pay employees’ wages at least twice a month, on regular paydays designated in advance. So when you complained about the late paychecks to the Regional Manager, you were complaining about violations of a California statute.

Under Labor Code Section 1102.5(b), it is unlawful for “an employer, or any person acting on behalf of the employer” to “retaliate against an employee for disclosing information…to a person with authority over the employee or another employee who has the authority to investigate,” about “violation[s] of [a] state or federal statute.” That appears to be what happened in your situation.

To prevail on a claim for whistleblower retaliation, you must first show that it is more likely than not that your complaint about the late paychecks was “a contributing factor” to the decision to fire you. This is called the preponderance of evidence standard. If that is the case, your former employer then has to prove, by clear and convincing evidence, that they would have fired you even if you had never complained about the late paychecks.

The clear and convincing standard of proof required of the employer is a heavier burden than the preponderance standard that you as the employee would have to meet.

Jurors take retaliation against employees seriously. If you prevail on your claim for whistleblower retaliation, you may be awarded monetary compensation for lost wages and benefits, as well as for any emotional distress you suffered as a result of the unlawful retaliation. In addition, you can recover attorneys’ fees and litigation costs you may have incurred in successfully bringing a whistleblower retaliation claim.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered

wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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