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California employers should be ready for some new labor and employment law requirements that became effective January 1st. One of these is the law concerning the posting of a notice informing employees of their rights as potential “whistleblowers.”
California law requires employers to post a notice that includes information about employees’ rights and protections under the state’s whistleblower laws. In the summer of 2024, AB 2299 was approved by the Governor. The law requires the California Labor Commissioner to create and publish a model notice of employee’s rights and responsibilities under the state’s whistleblower law. The Labor Commissioner has released the new model notice, entitled “Whistleblowers Are Protected.”
Employers are also permitted to create their own posting that contains the required information, but it must have lettering that’s at least 14-point typeface and include the state’s whistleblower hotline number (800-952-5225). Also, the posting is to be printed on 8½ x 14-inch paper with at least ½-inch margins no to conform to the statutory requirement that the lettering be larger than size 14-point type.
Do the New Requirements Apply to Employers with Remote Employees?
The law doesn’t give any indication as to how remote workers should get the Notice. However, Labor Code § 1207—that was put into place in 2022—states that employers are to send the information to employees by email with attachments (as necessary). To be safe, employers should distribute the required Notice (along with other required postings) to remote employees via mail.
Email distribution doesn’t alter the employer’s obligation to physically display the required posting.
Which Employees are Protected?
The Labor Commissioner’s Office says that pursuant to California Labor Code § 1102.5, employees are the protected class of individuals. The term “employee” is defined as:
Any person employed by an employer, private or public, including, but not limited to, individuals employed by the state or any subdivision thereof, any county, city, city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, political subdivision, or the University of California.
What’s the Definition of a Whistleblower?
The Commissioner defines a "whistleblower'' as:
An employee who discloses information to a government or law enforcement agency, person with authority over the employee, or to another employee with authority to investigate, discover, or correct the violation or noncompliance, or who provides information to or testifies before a public body conducting an investigation, hearing or inquiry, where the employee has reasonable cause to believe that the information discloses:
- A violation of a state or federal statute,
- A violation or noncompliance with a local, state or federal rule or regulation, or
- With reference to employee safety or health, unsafe working conditions or work practices in the employee's employment or place of employment.
In addition, a whistleblower can be an employee who refuses to participate in an activity that would result in a violation of a state or federal statute, or a violation of or noncompliance with a local, state or federal rule or regulation. Even if an employee doesn’t engage in such protected activity—but their employer believes they did or will engage in protected activity in the future—they’re deemed to be a whistleblower and are protected.
What Protections Do Whistleblowers Have in California?
With that in mind, there are certain protections afforded to whistleblowers:
- An employer can’t make, adopt, or enforce any rule, regulation, or policy preventing an employee from being a whistleblower;
- An employer can’t retaliate against an employee who’s a whistleblower or is perceived to be a whistleblower;
- An employer can’t retaliate against an employee for refusing to participate in an activity that would result in a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation; and
- An employer can’t retaliate against an employee for having exercised their rights as a whistleblower in any former employment.
Moreover, under California Labor Code § 1102.5, if an employer retaliates against a whistleblower, the employer may be required to reinstate the employee's job and work benefits, pay lost wages, as well as civil monetary penalties. The employer may also be required to take other actions necessary to comply with the law.
Takeaway
The notice was required to be posted starting January 1, 2025. All employers in California should be certain that they’re in compliance with the new California Whistleblower Rights Notice and other notice-posting requirements. Speak with Eanet Law for a periodic review of these posting requirements.