Why it matters: California’s whistleblower protections are not limited to the first employee who reports the alleged misconduct, an appellate court recently determined. The case involved a Los Angeles County deputy sheriff who sued after he was terminated alleging that he was fired for statements he made about information revealed during the course of an investigation connecting a fellow sheriff to a murder and drug ring. The County argued that the plaintiff did not qualify for whistleblower protection because the information he reported was already known to the sheriff’s department. A jury found in his favor and the County appealed. Affirming the verdict, the panel ruled that secondary reports are covered by the statute’s protections, as a “report does not necessarily reveal something hidden or unknown.” The court also cited public policy concerns, noting that limiting protections to first reports would discourage whistleblowing in contradiction of the statute’s intent.
A deputy sheriff with the Los Angeles County Sheriff’s Department, Darren Hager was appointed as a liaison to a federal Drug Enforcement Agency (DEA) task force investigating a large methamphetamine organization.
The investigation was launched by an informant’s tip to Hager; the same informant also suggested that the drug ring was involved in the disappearance and murder of Jonathan Aujay, a deputy sheriff who had disappeared near a purported meth lab. The informant also said a third deputy sheriff, Richard Engels, may have been involved in the murder of Aujay.
A homicide detective investigating Aujay’s disappearance had heard similar rumors. Hager briefed him and superior officers about what his informant had said. Hager was specifically instructed by a superior officer not to investigate Aujay’s disappearance or wrongdoing by Engels, but if he learned any information during the DEA investigation, he was to report it to the Internal Criminal Investigations Bureau.
Hager was later investigated and brought up on charges for disobeying this direct order as well as making false statements for allegedly misrepresenting statements and information provided by informants. He was terminated in 2003 and filed suit against the County.
The County violated California Labor Code Section 1102.5(b), Hager claimed, because he reported alleged misconduct about a fellow sheriff and was terminated as a result. A jury agreed and awarded him $4.5 million in damages.
On appeal, the County told the court that Hager did not “disclose information” as required by Section 1102.5(b) because the department already had information that Engels might have been involved in Aujay’s disappearance before Hager reported his suspicions.
But no such “first report” limitation can be found in the statute or in case law, the appellate panel said. “The plain language of Section 1102.5(b) does not limit whistleblower protection only to an employee who discloses unlawful conduct that had not been previously disclosed by another employee,” the court wrote.
Further, the “first report” rule proposed by the County runs contrary to the legislative intent in enacting Section 1102.5(b), the panel said. “Protection only to the first employee to disclose unlawful acts would defeat the legislative purpose of protecting workplace whistleblowers, as employees would not come forward to report unlawful conduct for fear that someone else had already done so. The ‘first report’ rule would discourage whistleblowing. Thus, the County’s interpretation is a disincentive to report unlawful conduct. We see no such reason to interpret the statute in a manner that would contradict the purpose of the statute.”
The panel distinguished federal cases limiting whistleblower protections based on “publicly known” or “already known” information as “distinct from a rule in which only the first employee to report or disclose unlawful conduct is entitled to protection from whistleblower retaliation,” adding that Section 1102.5(b) “should be given a broad construction commensurate with its broad purpose.”
While the court upheld the jury’s liability finding against the County, it vacated the award of damages for loss of future earnings, reducing the total award to just over $2 million.
To read the opinion in Hager v. County of Los Angeles, click here.