CACI 4605 Whistleblower Protection—Health or Safety Complaint—Essential Factual Elements (Lab. Code, § 6310)

New December 2015; Revised December 2016, May 2018

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Use this instruction for a whistleblower claim under Labor Code section 6310 for employer retaliation for an employee’s, or an employee’s family member’s, complaint or other protected activity about health or safety conditions. Select the appropriate statutorily protected activity in element 2 and summarize it in the introductory paragraph. (See Lab. Code, § 6310(a), (c).)

With regard to the first option in element 2, the complaint must have been made to (1) the Division of Occupational Safety and Health, (2) to another governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, (3) to the employer, or (4) to the employee’s representative. (Lab. Code, § 6310(a)(1).)

The statute requires that the employee’s complaint be “bona fide.” (See Lab. Code, § 6310(b).) There appears to be a split of authority as to whether “bona fide” means that there must be an actual health or safety violation or only that the employee have a good-faith belief that there are violations. (See Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676, 682, fn. 5 [145 Cal.Rptr.3d 766].) The instruction should be modified if the court decides to instruct one way or the other on the meaning of “bona fide.”

Note that element 4 uses the term “substantial motivating reason” to express both intent and causation between the employee’s protected conduct and the defendant’s adverse action. “Substantial motivating reason” has been held to be the appropriate standard under the Fair Employment and Housing Act to address the possibility of both discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.) Whether the FEHA standard applies under Labor Code section 6310 has not been addressed by the courts. There is authority for a “but for” causation standard instead of “substantial motivating reason.” (See Touchstone Television Productions, supra, 208 Cal.App.4th at pp. 681–682.)

•Whistleblower Protection for Report of Health or Safety Violation. Labor Code section 6310.

•“Division” Defined. Labor Code section 6302(d).

•“[Plaintiff]’s action is brought under section 6310, subdivision (a)(1), which prohibits an employer from discriminating against an employee who makes ‘any oral or written complaint.’ Subdivision (b) provides that ‘[a]ny employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has made a bona fide oral or written complaint to … his or her employer … of unsafe working conditions, or work practices … shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.’ ” (Sheridan v. Touchstone Television Productions, LLC (2015) 241 Cal.App.4th 508, 512 [193 Cal.Rptr.3d 811].)

•“[T]he plaintiff did not lack a remedy: she could sue under section 6310, subdivision (b) which permits ‘an action for damages if the employee is discharged, threatened with discharge, or discriminated against by his or her employer because of the employee’s complaints about unsafe work conditions. Here, it is alleged that [the defendant] discriminated against [the plaintiff] by not renewing her employment contract. To prevail on the claim, she must prove that, but for her complaints about unsafe work conditions, [the defendant] would have renewed the employment contract. Damages, however, are limited to “lost wages and work benefits caused by the acts of the employer.” ’ ” (Touchstone Television Productions, supra, 208 Cal.App.4th at pp. 681–682, original italics.)

•“The voicing of a fear about one’s safety in the workplace does not necessarily constitute a complaint about unsafe working conditions under Labor Code section 6310. [Plaintiff]’s declaration shows only that she became frightened for her safety as a result of her unfortunate experience … and expressed her fear to [defendant]; it is not evidence that the … office where she worked was actually unsafe within the meaning of Labor Code sections 6310 and 6402. Hence, [plaintiff]’s declaration fails to raise a triable issue of fact as to whether she was terminated for complaining to [defendant] about unsafe working conditions in violation of Labor Code section 6310.” (Muller v. Auto. Club of So. Cal. (1998) 61 Cal.App.4th 431, 452 [71 Cal.Rptr.2d 573], disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6 [130 Cal.Rptr.2d 662, 63 P.3d 220].)

•“Citing Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 452 [71 Cal.Rptr.2d 573], defendants assert plaintiff’s causes of action based on section 6310 must fail because an essential element of a section 6310 violation is that the workplace must actually be unsafe. We first note that the Muller court cites no authority for this assertion. It appears to contradict Justice Grodin’s pronouncement that ‘… an employee is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe, whether or not there exists at the time of the complaint an OSHA standard or order which is being violated.’ We agree that an employee must be protected against discharge for a good faith complaint about working conditions which he believes to be unsafe.” (Cabesuela v. Browning-Ferris Indus. (1998) 68 Cal.App.4th 101, 109 [80 Cal.Rptr.2d 60], internal citation omitted.)