Whistleblower Protections under Health & Safety Code Section 1278.5

California Whistleblower Statute H&S 1278.5

California Health and Safety Code Section 1278.5 is designed to protect whistleblowers in the healthcare industry. It encourages patients, nurses, medical staff, and other healthcare workers to report unsafe patient care and conditions without fear of retaliation.  Recently wrongful termination cases filed under Labor Code section 1102.5 have been lost when an employer shows that the doctor would have been terminated even though she/he was also a whistleblower.  H&S 1278.5 provides a path to victory for the doctor even if the "We would have fired" defense is used.  

First, understand just how important H&S 1278.5 is for patient care.  Here are some key points outlining the scope and purpose of the statute.

1. Encouragement of Reporting: The law encourages reporting to government entities to protect patients and ensure safe healthcare practices.

2. Protection Against Retaliation: Health facilities are prohibited from discriminating or retaliating against individuals who report unsafe conditions or participate in investigations.

3. Civil Penalties: Violations of this section can result in civil penalties of up to $25,000.

4. Presumption of Retaliation: Any discriminatory treatment of a patient or healthcare worker within 180 days of filing a grievance or complaint is presumed to be retaliatory.

The statute is particularly valuable in cases where the defense might successfully argue under Labor Code Section 1102.6 that despite any whistleblowing, they would have fired an employee anyway. That defense may get a corrupt organization off the hook.

However, the “We would have fired anyway” defense does not apply in the same way to H&S 1278.5. The same standard which applies to FEHA and Title VII claims should also apply to Section 1278.5 claims, as they are, in fact, the most closely analogous statutes to Section 1278.5. Both statutes preclude discrimination, harassment, and retaliation against a person who opposes prohibited conduct under the respective statutes. (See Labor Code § 12940(h) and Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1036). Section 1278.5 more narrowly applies to healthcare workers but also precludes discrimination, harassment, and retaliation.

Both statutes share similar prima facie elements. Under Section 1278.5, a plaintiff must show that:

1. She engaged in protected activity under the statute;

2. She was thereafter subjected to an adverse employment action;

3. There is a causal link between the two. (Jadwin v. County of Kern (E.D. Cal. 2009) 610 F.Supp.2d 1129, 1144).

The elements of a retaliation claim in violation of Section 12940, subdivision (h), are substantially the same:

1. The employee's engagement in a protected activity, i.e., opposing any practices forbidden under this part;

2. Retaliatory animus on the part of the employer;

3. An adverse action by the employer;

4. A causal link between the retaliatory animus and the adverse action;

5. Damages;

6. Causation. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713).

Both statutes use the term “because” in connection with the motivational element needed to be established. (See Labor Code Section 12940 (h) and Section 1278.5(b)(1)). In interpreting the FEHA statute, the Supreme Court said: “The phrase ‘because of’ means there must be a causal link between the employer's consideration of a protected characteristic and the action taken... What is disputed is the kind or degree of causation required.” (Harris v. City of Santa Monica, 56 Cal.4th at 215). The Supreme Court discussed at length the policy reasons favoring the use of the “substantial motivating reason” element and held:

> Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same time, for reasons explained above, proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time. (Harris at 232).

So, here all remedies are still open except for lost wages and reinstatement. The Court can order changes at the hospital, other damages, and attorney’s fees.

The Horowitz legal team represents medical doctors who fight for quality patient care.  We take on hospitals and medical groups that retaliate against whistleblowers.