Can I file whistleblower claim and WC claim at the same time?

Asked 12 months ago - Daly City, CA

I was fired because I whistleblew on my employer about their illegal finance practices. However, they fired me using the PIP with all unwarranted reasons. I also filed a workers comp claim two weeks before I was fired because my boss made me job impossible like putting extra workload on me and blamed me that I fell behind my work. I had to assume 3 people's jobs and I was so stressed out because of these workloads. Can I file a complaint to both Labor Commissioner for whistleblowing protected activity and WC claim on DFEH? I heard that one claim might affect the other. Is it true?

Additional information

I meant the discrimination complaint with DFEH for filing WC claim based on mental disability basis.

Attorney answers (4)

  1. Nathan Kased

    Contributor Level 12

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    Answered . The short answer is yes. You allege that your separation was really motivated by your reporting of the "illegal finance practices" (which possibly supports a claim under Labor Code section 1102.5, among others) and your filing for work comp (actionable under Labor Code section 132a). The better question is should you. Pursuit of the work comp retaliation claim can impact the pursuit of your whistleblower retaliation claim in unforeseen ways. So, before doing anything, you should consult with a knowledgeable employment attorney about the best course of action. Incidentally, the DFEH (Department of Fair Employment and Housing) is not the appropriate forum for the 132a claim you contemplate. Again, it is in your interest to speak with an employment attorney before you do anything. Hope this helps.

    Please contact me at (213) 222-6560 for a free consultation and case evaluation. This answer is for educational... more
  2. Craig Trent Byrnes

    Pro

    Contributor Level 15

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    Answered . You can file a whistleblower claim at the same time that you file a workers compensation claim. There's nothing to prevent that.

    I think you're thinking of the wrong agencies, though. You don't file a workers compensation claim with the DFEH. The DFEH only covers discrimination, harassment, and retaliation based on acts and characteristics protected under the Fair Employment and Housing Act. It has nothing to do with what you're talking about.

    Also, while the Labor Commissioner may take a complaint for whistleblower retaliation, they almost never follow up on them. I've never heard of them actually investigating a claim of whistleblower retaliation even after they took the complaint.

    I hope this information is helpful to you.

    Sincerely,
    Craig T. Byrnes
    www.ctblawfirm.com
    310-706-4177

    Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with... more
  3. Neil Pedersen

    Contributor Level 20

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    Lawyer agrees

    Answered . Your post demonstrates that you really need to consult with an employment lawyer before filing anything. Do not try to figure this out on your own. Find an employment attorney who will work on a contingency basis to help you work through this complicated process. If you do not do so, you will probably mess it up big time by filing complaints with the wrong entities.

    Furthermore, whistle blowing is a tricky thing. Not all complaints about company conduct give rise to protection under the various statutes that otherwise protect retaliation in those circumstances. It is critically important that you understand the subtle distinctions in that area of law before you try to file. Once you file, your position will be solidified, and if the position you take does not give you a right to proceed, when you otherwise would have had such a right, you will have severely hurt your case.

    You would serve yourself well to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more
  4. Arkady Igor Itkin

    Pro

    Contributor Level 13

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    Answered . Hello,

    As other attorneys pointed out, you can file both claims separately. Workers compensation claim addresses any physical injury you suffered while working as a result of work, regardless of whether it was fair or unfair, regardless of your termination and reasons for it. All that matters is the extent to which you were injured, which will be determined a doctor or a panel of doctors, and then any compensation that you may be entitled to will be assigned based on the degree of your injury.

    If you were terminated in retaliation for complaining about unlawful activities at workplace, you may have a claim for wrongful termination. Labor Commissioner is not the most effective way to address it, and consulting with a private attorney to determine whether there is sufficient evidence to pursue a claim in court, should be your first step.

    Generally, workers comp claim cannot affect the other except in specific, limited circumstances.

    DFEH does not handle worker comp claims. The right office is the Workers Compensation Appeals. board.

    Thanks,

    Arkady Itkin
    San Francisco & Sacramento Employment Lawyer

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