Complaining of employer’s illegal conduct is protected activity 
By Atty. C. Joe Sayas Jr.
INQUIRER.NET U.S. Bureau
September 4, 2020 at 9:21 am

Dr. Jan Weber worked for 5 years as a psychiatrist for the Santa Clara Valley Medical Center, a public hospital in Santa Clara County. He was assigned at the hospital’s child and adolescent psychiatry department. During his employment, Dr. Weber complained to his supervisors about substandard patient care and unsafe work conditions, including the following:

  • Mentally ill inmates at the hospital were being discharged with no plan for follow-up treatment and care, which led to higher rates of relapse and recidivism.
  • For a psychiatrist to be assigned to a juvenile detention facility only one day every other week was not enough, as federal law requires more frequent monitoring for youth on antidepressant medication. Dr. Weber’s supervisor berated him and accused him of being “difficult,” “not a team player,” and a “trouble maker” and reduced his hours at the facility and posted him to 9 different clinical sites for a year and half.
  • The hospital had “excessive productivity expectations” for doctors in the adult outpatient psychiatry clinics and inadequate security at the facilities.
  • The Mental Health Urgent Care was turning away pediatric and adolescent patients seeking care for emergency mental psychiatric issues (citing the case of a teenaged girl who was turned away despite reporting hearing voices telling her to kill herself). Dr. Weber thought this may be a violation of federal laws prohibiting patient dumping and refusing appropriate levels of mental health treatment.
  • The county’s “use of pepper spray cannot be recommended from a child psychiatric perspective” as medical literature warned against it. When his report was sent to hospital directors, he was cautioned against sending it to a “broader audience.”

When Dr. Weber was elected by his peers as vice chairman of the county Department of Psychiatry, the Chief Medical Officer refused to appoint him. He was later fired for a purported lack of productivity and unprofessional conduct.

An employee who challenges an employer’s illegal conduct, may experience demotion or termination. This is unlawful retaliation.

In a retaliation claim, an employee must prove that they engaged in protected activity. Engaging in “protected activity” means that the employee must complain or oppose a practice which is forbidden by law. The complaint may be internal (e.g., made to managers or officers within the company) or external (e.g., made to government agencies).

Additionally, courts have held that “protected activity” includes complaints or opposition to conduct the employee “reasonably” and in “good faith” believes to be unlawful, even if the conduct is not actually prohibited under the law.

The California Whistleblower Protection Act protects whistleblowing employees from retaliation by their employers. It provides for civil liability against any person who threatens or retaliates against an employee for making a ‘protected disclosure’ as provided by law. This means an employer must not retaliate against an employee for providing information to a government or law enforcement agency, where the employee reasonably believes that a violation of law has occurred. The employer cannot also retaliate against an employee who refuses to participate in activities that violate the law.

Dr. Weber’s case was tried before a jury, which returned a verdict in his favor. He was awarded $552,800 in past and future lost wages and $1,000,000 for past and future emotional distress.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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