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Whistleblower Claims: What Is Pretext?

whistleblower.jpgThe Equal Employment Opportunity Commission (EEOC) defines pretext as a justification offered for an action that differs from the real reason the action was taken. In a whistleblower case, pretext generally means that the employer's articulated reasoning for an adverse employment action was either completely false or was used as a cover in order to punish the employee for their protected whistleblower activity. If you believe adverse employment action was taken against you because of your protected whistleblower activity, you need to speak to an experienced San Jose whistleblower claims attorney immediately.

Pretext in a Whistleblower Case

Depending on the industry, and the extent of your whistleblowing, there are a number of different state and federal laws that might offer you protection against retaliation. This includes the California Labor Code, which provides general whistleblower protection to all California employees. If you reasonably believe that your employer has violated state or federal law, your employer cannot retaliate against you for reporting that information to the appropriate authorities. Of course, the vast majority of California employers are aware of this law. Unfortunately, that leads too many of them to attempt to retaliate against whistleblowers by disguising retaliation as stemming from an 'unrelated issue'. Some employers are very good at covering their tracks, and these cases are often challenging. However, many employers use very similar tactics to disguise retaliation and an experienced employment law attorney can help you spot illegal pretext.

Proving Pretext

California courts understand that pretextual reasoning can sometimes be hard to pin down. In a whistleblower retaliation case, pretext can be proven by establishing that an employer's adverse action was "more likely than not" driven by retaliatory animus. Further, it can also be proven by demonstrating that an employer's reasoning is simply not credible. One of the fundamental principles of whistleblower protection is that when an adverse employment action occurs soon after protected whistleblower activity, the two are likely to be related. This concept is known as temporal proximity. For example, in the case Fraser v. Fiduciary Trust Co. the court found that temporal proximity between protected activity and adverse action is a major factor in determining whether or not causation was present. Ultimately, if your employer has suddenly started taking negative action against you, or has terminated you, soon after you blew the whistle, you need to speak to an employment law attorney immediately. Other factors that courts consider include:

  • The plausibility of the employer's stated reasoning;
  • Any inconsistencies within the stories of the managers at the company;
  • Any use of after the fact justifications; or
  • Disproportionate punishments.

The last point is important, because in many whistleblower retaliation cases, an employee actually did do something wrong. However, it was something relatively minor. In this situation, some employers try to exploit a minor mistake and use that as a justification to get rid of a whistleblower. That is illegal; indeed, disproportionately punishing a whistleblower is pretext.

Contact an Experienced San Jose Employment Law Attorney

At Diemer, Whitman & Cardosi, LLP our San Jose employment law attorneys have broad experience handling all sides of employment issues. If you were retaliated against for whistleblower activity in California, particularly if you work in technology, telecommunications, computer software or any Silicon Valley based industry, you should contact our office today for a free legal consultation.




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