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FEBRERY 2005
WHISTLE BLOWER PROTECTION POSTER
As our December Employment Law Update advised, SB 777 (effective January 1, 2004,) extends protection
to employees who; a) Report a violation of a state or federal rule, b) refuse to participate in any activity that
would result in a violation of a state or federal rule; and c) exercised their rights in former places of
employment to report a violation of state or federal law.
This law also requires that Employers add to the already numerous posters a new poster regarding
employees’ rights and responsibilities under the whistle blower laws, including a telephone number of the
whistle blower hotline established and maintained by the California Attorney General’s office. The poster
must be printed in print that is larger than size 14 pica type and placed in a conspicuous place for employees
to be able to review.
A sample poster is enclosed with this Special Bulletin which has been prepared by the Division of Labor
Standards Enforcement and is in full compliance with the requirements of SB 777. Employers are advised
to post this or a similar notice immediately.
As a reminder, under this new law, Employers are:
Prohibited from retaliating against an employee for exercising any of these rights, including
those provided under existing law,
Required to make a showing by clear and convincing evidence (rather than a mere
preponderance of the evidence) that the alleged action by the employer would have occurred
for legitimate, independent reasons, even if the employee had not engaged in the activities
protected by the whistle blower statute.
An employer that is a corporation or limited liability company may be held liable for a civil
penalty not exceeding ten thousand dollars ($10,000) for each violation of this law.
What Should Employers Do:
Post the required poster to be in compliance with State law
Accept for investigation any report of a suspected violation of law from an employee;
Prohibit any retaliatory conduct against any employee who files a report.
COURT LIMITS POTENTIAL DAMAGES FOR HARASSMENT CLAIMS
In very good news for employers, the California Supreme Court recently decided that employers with
strong policies against sexually harassing conduct may be able to limit the damages in lawsuits.
Federal courts had previously recognized the ability of employers to limit their damages by asserting what
is known as the “Burlington/Faragher defense” (named after two U.S. Supreme Court cases). This defense
provides that in hostile work environment claims, an employer may establish a partial or complete defense
to the claims by proving that:
a) The Employer exercised reasonable care to prevent and promptly correct any sexually
harassing conduct; and
b) The Employee unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer to avoid further harm.
California now recognizes a similar defense known as the “Avoidable Consequences Doctrine” for sexual
harassment cases. The doctrine provides that a person injured by another person’s wrongful conduct will
not be compensated for damages the injured person could have avoided by reasonable efforts. The Court
held that in hostile work environment cases an employer may plead a defense by proving the following:
a) The Employer took reasonable steps to prevent and correct workplace harassment;
b) The Employee unreasonably failed to use the preventive and corrective measures the
Employer provided, and
c) Reasonable use of the Employer’s procedures would have prevented at least some of the
harm the Employee suffered.
The Court’s decision clearly sets forth the reasoning in that “Prompt employer intervention not only
minimizes the injury to the victim, but also sends a clear message throughout the workplace that harassing
conduct is not tolerated” .
Employers should:
a) Review their harassment policy to ensure that there is a strong statement against workplace
harassment and confirm employees receipt of the policy statement;
b) Conduct training for both supervisors and employees about the policy against harassment
and the complaint procedure to be utilized;
c) Inform supervisors that it is their responsibility to report any harassing conduct and that
failure to do so will be grounds for discipline;
d) Thoroughly document any complaints of harassment;
e) Undertake an immediate, thorough and neutral investigation into the allegations; and
f) Take appropriate remedial action if it is determined that harassment has occurred.
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Whistle Blower Protection & Harassment Claims |
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This information is intended to provide guidance in the area of employment law and is provided as a service of the Firm. While every effort
has been made to ensure the accuracy of the information contained in this bulletin, it is not intended to serve as "legal advice". If additional
information or assistance is needed on any of the topics contained in this informational package or any other matter, please feel free to
contact Cynthia Elkins for further information. All rights reserved. ©2005.
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