In a landmark unanimous ruling late last week, Murray v. UBS Securities, LLC, et al. 601 U. S. ____ (2024), the U.S. Supreme Court held that whistleblowers do not need to prove their employer acted with “retaliatory intent” to be protected under the Sarbanes-Oxley Act. Instead, all whistleblower plaintiffs need to prove is that their protected activity was a “contributing factor” in the employer’s unfavorable personnel action. Continue Reading U.S. Supreme Court Endorses Low Burden of Proof for Whistleblowers
In the past few months, California Governor Newsom has signed numerous new employment laws affecting California employers of all sizes. Below is a summary of some of the laws going into effect in 2024.Continue Reading Looking Ahead: New California Employment Laws for 2024
In People ex rel. Garcia-Brower v. Kolla’s, Inc., the California Supreme Court resolved a split between the Courts of Appeal for the First and Second Districts over whether a protected “disclosure” under Labor Code section 1102.5(b) includes a report of unlawful activity made to an employer or agency that already knew about the reported unlawful activity. The Supreme Court held that it does.Continue Reading California Supreme Court Adopts Broader Definition of “Disclosure” Under State Whistleblower Law
In a last minute whirlwind of activity by California’s Legislature, a significant number of employment-related bills have now made their way to Governor Newsom’s desk and await their fate. Below are highlights of some of the bills that may affect California employers, should Governor Newsom sign them into law.Continue Reading What’s on Deck With Governor Newsom? Employment-Related Bills That May Soon Impact California Employers
On March 16, 2022, New York Governor Kathy Hochul signed into law two amendments to the State’s workplace anti-discrimination and anti-harassment laws.
Continue Reading New York State Amends Its Workplace Anti-Discrimination and Anti-Harassment Laws
In Lawson v. PPG Architectural Finishes, Inc., __ P.3d __, 2022 WL 244731 (Cal., Jan. 27, 2022), the California Supreme Court clarified that whistleblower retaliation claims brought under Labor Code section 1102.5 should not be evaluated under the McDonnell Douglas test, but instead the standard enumerated in Labor Code section 1102.6. Under the section 1102.6 standard, a plaintiff must show that a protected activity was a contributing factor in a prohibited action against the employee by a preponderance of the evidence. The employer must then demonstrate with clear and convincing evidence that the action would have occurred for legitimate, independent reasons, even if the employee had not engaged in protected action.
Continue Reading California Supreme Court Holds That McDonnell Douglas Standard Should Not Be Used When Evaluating Whistleblower Retaliation Claims
On September 30, 2020, California Governor Gavin Newsom signed Assembly Bill (“AB”) 1947 into law. Effective January 1, 2021, AB 1947 will, among other things, authorize courts to award attorneys’ fees to whistleblowers who prevail against employers under Labor Code section 1102.5. This amendment will likely incentivize employees (and their lawyers) to bring retaliation claims against California employers. For our previous analysis of this bill, click here.
Continue Reading Whistleblower Retaliation Lawsuits Are About to Become More Expensive in California
In Wadler v. Bio-Rad Laboratories, Inc., No. 17-16193, 2019 WL 924827 (9th Cir. Feb. 26, 2019), the United States Court of Appeals for the Ninth Circuit held that statutes, including the Foreign Corrupt Practices Act (“FCPA”), do not constitute “rule[s] or regulation[s] of the Securities and Exchange Commission” (“SEC”) for purposes of determining whether an employee engaged in protected activity in a whistleblower claim under Section 806 of the Sarbanes-Oxley Act of 2002 (“SOX”). This decision clarifies the proper application of the express statutory language of Section 806.
Continue Reading Ninth Circuit Holds That Statutes Do Not Constitute “Rules or Regulations of the SEC” for Purposes of Sarbanes-Oxley Act Whistleblower Claims
A 21st Century Social Movement
In this age of interconnectivity, compelling societal movements have a never-before-seen speed and reach. Traditional means of spreading information and generating social change have been supplemented—if not outright replaced—by the near-instantaneous ability of an idea or cause to go viral on social media, regardless of its source. In 2018, the gatekeepers—and indeed, the gates—to disseminating content and generating popular support are being dismantled before our eyes. Nowhere over the past year was this more evident than in the #MeToo movement.
Continue Reading EEOC Data Confirms #MeToo’s Impact: Six Keys for Employers in the Wake of This Powerful Cultural Moment
In Franchina v. City of Providence, 2018 WL 550511, 2018 U.S. App. LEXIS 1919 (1st Cir., Jan. 25, 2018), the First Circuit offered no sympathy to the City in its appeal of a jury award that found the City’s fire department liable for tormenting a former lieutenant on the basis of her sex. The court’s sentiments were readily apparent from the outset of its opinion, which admittedly “decline[d] to put out flames of the Department’s own making.”
Harassment at the Firehouse
In the underlying trial, the plaintiff testified at length about the workplace harassment she experienced, which began after a superior filed a complaint on her behalf about another firefighter’s sexual misconduct toward her. Following the harassing firefighter’s discipline, the plaintiff was exposed to escalating verbal and physical mistreatment. The plaintiff’s colleagues referred to her in derogatory terms, physically assaulted her, gave her poisoned meals, refused to cooperate in providing emergency care at the peril of civilian lives, and once even flung the blood and brain matter of a suicide victim into her face. Despite awareness of these incidents, the Department failed to intervene. On these facts, the jury awarded the plaintiff front pay in the amount of $545,000 and a separate figure for emotional damages.
Continue Reading Sex + Discrimination = Liability, Says First Circuit
As reported in our new laws for 2017 post, employers must give written notice to new employees (and to current employees upon request) explaining the rights of victims of domestic violence, sexual assault and stalking. All California employers with at least 25 employees must be in compliance, effective July 1, 2017.
Continue Reading Now in Effect: California Employers Must Provide New Hires with Written Notice of Victim Rights