Is every employee who makes a formal complaint considered a “whistleblower”?
The federal District Court says no.
Mark Shulthies, a long time Amtrak employee working in California, sent an email to his supervisor complaining that the company’s decision to reorganize certain aspects of its service between the Bay Area and Bakersfield posed a “danger to the public.” Amtrak took no action on Shulthies’ complaint. A few months later, he was fired.
What’s the best way to spot potential whistleblower issues when before you fire a worker? Find out by joining us on October 30 for the 90-minute webinar: Terminating Employees in California: What You Should (and Should Not) Do When Firing Workers to Avoid Legal Trouble.
Shulthies sued, alleging that he was fired for being a whistleblower. Two separate provisions of the California Labor Code protect employees who make complaints about safety issues, or about their employer violating state or federal law. Shulthies sued under both statutes.
Siding with Amtrak, the U.S. District Court for the Northern District of California dismissed Shulthies’ case. The court ruled that while Shulthies complained that the route reorganization implemented by Amtrak would cause service disruptions and create “unsafe working conditions,” these complaints were too general to qualify as complaints about safety issues or violations of law.
The court also emphasized that not every employee complaint deserves whistleblower protection. Rather, the law only protects employees who are making bona fide complaints about specific safety hazards, or who have an objective reason to believe that their employer is breaking the law. Thus, Shulthies had no basis for challenging his termination.
We’ll have more on this case, and on which employee complaints are protected by whistleblower laws, in an upcoming issue of California Employer Advisor.
Hesitant to Terminate Employees Who Have Filed Complaints?
“You’re fired!” “It’s just not working out.” “We’re going to have to let you go.”
No matter how you say it, terminations—whether they involve a single employee or a large-scale layoff—are probably one of the least favorite parts of your job. Along with the emotional stress they cause, terminations can also pose enormous legal risks. Make one mistake in the firing process, even an innocent one, and your company may quickly itself embroiled in a costly lawsuit.
There are so many different ways to get it wrong:
- You say something to a departing employee in the heat of the moment that is prime lawsuit fodder later on.
- You discover after the firing that the ex-employee’s supervisor has always written glowing performance appraisals for that worker—and the documentation now suggests retaliation.
- You go the extra mile by offering severance payments with waivers to employees being laid off—but a common wording error later renders those waivers unenforceable.
- You make an error calculating a terminated employee’s final paycheck, or you withhold funds from departing workers that you’re not lawfully allowed to deduct.
Join us on Oct. 30 for this in-depth 90-minute webinar, where you’ll learn:
- The most common termination-related mistakes California employers make—and how to avoid repeating them
- Why you must prepare for the possibility of termination even before you hire an employee
- The specific policies and practices you need in place to lawsuit-proof your company before you terminate another employee
- What you should always say—and what you must never say—when letting an employee go
- How to review your severance agreements to make sure they’re binding, and risky language to watch out for
- The crucial post-termination steps you should take to stay out of legal trouble
- What to do when an employee fired for cause later asks you for a job reference
- The unique risks involved in group layoffs, as well as terminations involving older workers
- What you can—and cannot—deduct from a terminated worker’s last paycheck
