Have you ever blown the whistle on illegal activity in the workplace and then been retaliated against? Did you have trouble finding a lawyer who would represent you? California protects whistleblowers, but defendants sometimes argue that whistleblower retaliation claims under California Labor Code section 1102.5 (California’s general whistleblower statute) do not require defendant to pay the whistleblower’s attorney’s fees. Attorney’s fees awards are critical to helping whistleblowers get their day in court. Because most people can’t afford to hire an attorney on an hourly basis, laws that allow for the recovery of attorney’s fees allow attorneys to take cases on a contingency basis – the attorney only gets paid if you get paid. An award of attorney’s fees also means that the attorney’s payment doesn’t have to come out of the amount you recover. You get your recovery and the attorney gets her fees, without the attorney having to take her fees out of your recovery (typically at least 1/3 to 40% of your recovery).
Attorney’s fees awards are available under California Code of Civil Procedure section 1021.5 where the case involves the enforcement of an important right affecting the public interest if: (1) a significant benefit, monetary or non-monetary, has been conferred on the general public or a large class of persons; (2) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate; and (3) such fees should not in the interest of justice be paid out of any recovery (i.e., the attorneys should not be paid out of what the employee recovers). The question is, does a violation of 1102.5 warrant the recovery of attorney’s fees as outlined in 1021.5? Can whistleblowers recover their attorney’s fees?
The California Court of Appeals recently said yes.
In Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, two employees blew the whistle on illegal activity happening in the City of Los Angeles’ Department of Transportation. Todd Hawkins and Hyung Kim were hearing examiners who reviewed parking violations. When people challenged parking tickets, Mr. Hawkins and Mr. Kim decided whether those people had in fact violated parking laws or if the City had gotten it wrong and needed to issue a refund for the fines they had charged.
Both men complained internally that their supervisor was pressuring them to change decisions from “not liable” to “liable” – in other words, saying people had violated parking laws when they hadn’t and cheating people out of refunds for the fines they had paid. Both men were then fired for speaking up.
They sued for whistleblower retaliation under 1102.5, the California Bane Act, and other claims. They also filed claims with California’s Labor and Workforce Development Agency seeking PAGA (Private Attorneys General Act) penalties. The matter went to a jury trial, and the jury found in the employees’ favor on their 1102.5 and Bane Act claims, awarding Hawkins $238,531 and Kim $188,631 in damages. The trial court then assessed a $20,000 PAGA penalty, and subsequently awarded the employees $1,054,286.88 in attorney’s fees. The City appealed.
The Court of Appeals upheld the jury’s verdict, upholding the award of attorney’s fees for whistleblower retaliation under 1102.5. As the Court explained,
Here, the City argues that a significant benefit was not conferred on the public because all the action did was remedy retaliation for whistleblowing. However, the City ignores the trial court’s finding that the action also conferred a significant public benefit because the public is entitled to fair hearings with respect to parking citations. The Vehicle Code entitles the public to “an independent, objective, fair, and impartial review of contested parking violations.” (Veh. Code, § 40215, subd. (c)(3).) Plaintiffs’ action revealed that, for years, the City had been pressuring, sometimes successfully, hearing examiners to change decisions, usually to find that refunds were not warranted. In short, the public had been deprived of independent and impartial hearings. Instead, the City undermined the process provided by the Vehicle Code to generate revenue.
Mr. Hawkins and Mr. Kim were whistleblowers under 1102.5 who satisfied the requirements under 1021.5 of acting in the public interest, warranting their recovery of attorney’s fees.
The Court of Appeals also upheld the award for attorney’s fees for Mr. Hawkins’ and Mr. Kim’s PAGA claim. This is a big deal: in an unpublished portion of the opinion, the Court explains that an individual whistleblower under 1102.5 can still be representative of a broader group of people, as required by PAGA, when that individual whistleblower is furthering the public interest. The Court distinguishes another case, Kahn v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804, where the plaintiffs’ PAGA claim was denied because it wasn’t representative:
We express no opinion as to the correctness of Kahn’s holding. Whether correct or not, we do not interpret Kahn so literally as to hold that a plaintiff whose prefiling notice uses the incorrect pronoun—I instead of we and my instead of our—fails to comply with the Labor Code’s administrative procedures. Rather, we must determine whether the prefiling notice, as a totality, gave the requisite notice. Plaintiffs’ prefiling notices are materially different than the notice in Kahn. Their notices referred to complaints that Walton-Joseph had hearing officers change written decisions from not liable to liable. Hawkins referred to Walton-Joseph’s actions “in coercing employees, including Claimant to change their decisions.” (Italics added.) Similarly, Kim referred to another hearing examiner who had complained to government officials about the conduct. Thus, the notices here expressly referred to conduct not limited to the individual complainants. They complained about conduct that impacted them and fellow hearing examiners, as well as the public. We therefore conclude that plaintiffs complied with section 2699.3 [PAGA].
While attorneys cannot cite to the above portion of the Hawkins opinion, it’s worth noting the Court’s implicit suggestion to use the pronoun “we” in PAGA claims to forestall any argument from the defendant employer that the plaintiff does not have a viable PAGA claim.
Hawkins strengthens whistleblower protections, making it more likely that whistleblower cases will be brought to court – and therefore making it more likely that the harms whistleblowers uncover will be remedied. Hawkins will be a key case moving forward to combat public corruption and the silencing of those who dare to speak truth to power.
Bryan Schwartz Law has written about attorney’s fees for whistleblower retaliation and PAGA before. If you believe that you were retaliated against for exposing illegal activity at your workplace, please contact Bryan Schwartz Law today.