Case Example: Whistleblower Retaliation

In one of our cases, we represented an employee who wrongfully terminated after she emailed her supervisor to inform him that she was being overworked, and how her schedule and the pressure of her assigned tasks prevented her from being able to take her meal and rest breaks. She also reported the lack of support and training materials from the employer. 

The next thing our client’s supervisor did was to set our client up for failure by giving her work he knew shew was not qualified to handle.  Our client’s supervisor stated he would be “increasing her volume of work”, even though he knew she had less experience and training than was required. Our client promptly wrote a detailed response to her employer, addressing the false allegations in the corrective action notice and seeking specific clarification as to what the alleged performance deficiencies were. In the response, our client also asserted she was not able to take her duty-free meal breaks. The employer failed to respond to Our client’ detailed rebuttal to the allegation of unsatisfactory performance.  This is a violation of the law.

Our client went to her employer next and reported retaliation against her, requested an investigation, and asked what steps her employer would be taking to prevent retaliation. Her employer failed to respond to this email, conduct any investigation, or take any steps to prevent retaliation. Our client then sent a follow up email requesting a response her email. Her employer never responded to our client’ rebuttal to the vague corrective action plan and reports of illegal conduct. Instead, her employer fired her, committing actionable legal violations.

In addition, our client’s employer did not have a break policy or take any steps to provide meal and rest breaks as the law requires. Her employer did not even record our client’s hours or whether she took any meal breaks as required in 8 Cal. Code of Regulations § 11040(7)(A)(3). “If an employer’s records show no meal period for a given shift over five hours, a rebuttable presumption arises that the employee was not relieved of duty and no meal period was provided.” (Donohue v. AMN Services, LLC (2021) 11 Cal. 5th 58, 74.) The absence of any records showing our client took meal breaks provides a presumption that her employer did not provide her with any meal breaks.

An employer meets its duty to provide a duty-free meal break “if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1040.) An employer may meet its duty to provide a meal break by having a meal period policy, training its employees on the meal period policy and requiring employees to notify the employer if they believed they were being prevented from taking meal breaks. (Serrano v. Aerotek, Inc. (2018) 21 Cal. App. 5th 773, 781, overruled in other part by Donohue v. AMN Services, LLC (2021) 11 Cal. 5th 58, 77.) Merely having a compliant break policy without taking any steps to implement it is not sufficient to provide an employee with a duty-free meal period. (Serrano, supra, 21 Cal. App. 5th at p. 781.)

In this case, our client’s employer did not have a break policy in its employee manual or provide any training on breaks. Our client’s reports about not being relieved from her work duties to take breaks is protected activity for which she could not legally be discharged.

Our client’s employer’s email was not sufficient to meet its duty to provide our client with her duty-free breaks under California law. Her employer took no further steps to address this issue beyond sending our client a short, self-serving email. Instead, a few days after our client’s protected activity, her supervisor created a false and vague corrective action which her employer ultimately stated was the basis for her discharge. Her supervisor failed to provide specifics or further support in response to our client’s detailed rebuttal to the notice and request for clarification. These facts and the timing of these events provide a strong inference that our client was discharged for her protected activity of reporting illegal conduct to her supervisor. 

Call Nassiri law if anything like this has happened to your at your place of employment and you believe you were wrongfully terminated.  949-375-4734.