Erhart v. BOFI HOLDING, INC., Dist. Court, SD California 2022
Sarbanes-Oxley’s whistleblower retaliation provision provides a company may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of” protected activity. 18 U.S.C. § 1514A(a). As the statute indicates, the retaliation that is actionable is “an unfavorable personnel action.” Tides v. The Boeing Co., 644 F.3d 809, 814 (9th Cir. 2011). By comparison, the Title VII anti-retaliation provision says “it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . [because] he has made [an EEOC] charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3. So, Sarbanes-Oxley’s text is more circumscribed than Title VII’s provision because it specifies the discrimination is “in the terms and conditions of employment.” And Erhart does not point the Court to a case allowing a Sarbanes-Oxley claim based on post-employment conduct.
The Dodd-Frank provision similarly provides no “employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of” protected activity. 15 U.S.C. § 78u-6(h)(1)(A). As the statute indicates, the prohibited discrimination by an “employer” is in “the terms and conditions of employment.” See id.
California’s general whistleblower statute says an employer “shall not retaliate against an employee for” engaging in protected activity. Cal. Labor Code § 1102.5(b). A prerequisite to asserting a violation of the whistleblower statute is the existence of an employer-employee relationship at the time the allegedly retaliatory action occurred. Hansen v. Cal. Dep’t of Corr. & Rehab., 171 Cal. App. 4th 1537, 1546 (2008). Hence, in Hansen, where “the alleged retaliation took place after [the plaintiff] retired,” an “employee-employer relationship did not exist,” and the employee could “not state a cause of action under Labor Code section 1102.5.” Id.; see also Retaliation Under Whistleblower Statutes, Cal. Prac. Guide Employment Litigation Ch. 5(II)-B (2020) (“No action lies under [the California statute] for alleged retaliatory conduct (e.g., defamation) after termination of employment.”).