Some say new California law shielding whistleblowers from firing ripe for abuse

California Gov. Gavin Newsom signed a bill into law that prevents employees who report on any labor violations, or health, safety, or pay equity issues from being fired or punished for 90 days.

The new law creates a presumption that actions against such an employee within that period is a retaliatory action that can result in penalties for the employer of $10,000.

While advocates say the measure is necessary to prevent retaliation against whistleblowers, other experts say the measure is ripe for abuse by individuals at risk of being fired who can use it to remain employed.

“Threats of retaliation have chilling effects in workplaces where employers maintain an unfair imbalance of power over workers’ jobs and earnings. According to the California Coalition for Worker Power that sponsored SB 497, threats of retaliation were enough to stop more than 40 percent of workers from seeking remedy for unjust and illegal conditions,” bill author Senator Lola Smallwood-Cuevas, D–Los Angeles, said in a public statement. “An even greater share of Black and Latinx workers – 55% and 46%, respectively – say the risks of speaking out are too high, making preventing retaliation a critical equity issue.

Smallwood-Cuevas’ says that over 90% of retaliation complaints filed with the Labor Commissioner’s Office are dismissed, a fact she blames on the fact that “the worker currently has the burden of proving that they were retaliated against because they were exercising their rights under the Labor Code.” As a result, Smallwood-Cuevas crafted SB 497 to “shift the burden of proof from the worker to the employer if the worker is retaliated against within 90 days of engaging in any protected activity under the Labor Code” and that instead, “the employer would have to prove that any adverse action taken against the employee was because of a legitimate, non-retaliatory reason.”

However, experts say this measure goes too far in the other direction, creating a way for workers who may be fired to remain at the company by filing a labor, health, safety, or pay equity complaint.

“They're trying to solve a problem by creating an even bigger problem, which is that a law like this can so easily be manipulated by anyone who is disgruntled or in an imminent position of losing their job. Can somebody just make a baseless claim and rely on that to protect their job for 90 days? Think of the burden that places on the employer” said California Policy Center co-founder Edward Ring in an interview. “The fact that this was passed by the legislature and signed by Newsom is further evidence that California’s Democratic supermajority and the politicians that are part of it are dominated by the political contributions and agenda of public sector unions.”

While the labor groups such as the California Coalition for Worker Power, Equal Rights Advocates, and the National Employment Law Project, which co-sponsored the bill, came out in support of the measure, business organizations lined up to oppose the measure.

A coalition of employer organizations that included the California Chamber of Commerce publicly opposed the measure on the grounds that 90 days is “not sufficient to infer causation.”