CACI No. 4605. Whistleblower Protection - Health or Safety Complaint - Essential Factual Elements (Lab. Code, § 6310)

Judicial Council of California Civil Jury Instructions (2020 edition)

Download PDF
4605.Whistleblower Protection - Health or Safety
Complaint - Essential Factual Elements (Lab. Code, § 6310)
[Name of plaintiff] claims that [name of defendant] [discharged/[other
adverse employment action]] [him/her/nonbinary pronoun] in retaliation for
[his/her/nonbinary pronoun][specify, e.g., complaint to the Division of
Occupational Safety and Health regarding unsafe working conditions]. In
order to establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] was an employee of [name of defendant];
2. [That [name of plaintiff], on [his/her/nonbinary pronoun] own
behalf or on behalf of others, [select one or more of the following
options:]
2. [made [an oral/a written] complaint to [specify to whom complaint
was directed, e.g., the Division of Occupational Safety and Health]
regarding [unsafe/unhealthy] working conditions;]
2. [or]
2. [[initiated a proceeding/caused a proceeding to be initiated]
relating to [his/her/nonbinary pronoun [or] another person’s]
rights to workplace health or safety;]
2. [or]
2. [[testified/was about to testify] in a proceeding related to [his/her/
nonbinary pronoun [or] another person’s] rights to workplace
health or safety;]
2. [or]
2. [exercised [his/her/nonbinary pronoun [or] another person’s] rights
to workplace health or safety;]
2. [or]
2. [participated in a workplace health and safety committee;]
2. [or]
2. [reported a work-related fatality, injury, or illness;]
2. [or]
2. [requested access to occupational injury or illness reports and
records;]
2. [or]
2. [exercised [specify other right(s) protected by the federal
1311
Copyright Judicial Council of California
Occupational Safety and Health Act];]
3. That [name of defendant] [discharged/[other adverse employment
action]] [name of plaintiff];
4. That [name of plaintiff]’s [specify] was a substantial motivating
reason for [name of defendant]’s decision to [discharge/[other
adverse employment action]] [name of plaintiff];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2015; Revised December 2016, May 2018
Directions for Use
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.)
CACI No. 4605 WHISTLEBLOWER PROTECTION
1312
Copyright Judicial Council of California
Sources and Authority
• 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
WHISTLEBLOWER PROTECTION CACI No. 4605
1313
Copyright Judicial Council of California
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.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency, § 405
2 Wilcox, California Employment Law, Ch. 21, Occupational Health and Safety
Regulation, § 21.20 (Matthew Bender)
3 California Torts, Ch. 40A, Wrongful Termination, § 40A.30 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.42 et seq. (Matthew Bender)
CACI No. 4605 WHISTLEBLOWER PROTECTION
1314
Copyright Judicial Council of California

© Judicial Council of California.