Kaiser Whistleblower Retaliation

Kaiser Permanente Nurse Wins $41.49 In Retaliation For Reporting Illegal Behavior

In December of 2023, a Los Angeles County jury awarded $41.49 Million to a Kaiser Permanente Neonatal Intensive Care Unit (“NICU”) Nurse who’s employment was terminated after raising concerns that Kaiser was in violation of law because it was understaffing the NICU.  Kaiser argued that the nurse was terminated because she was seen sitting in a recliner chair in the NICU and using her personal phone while she rested her bare feet on an “Isolette” with a baby inside of it.  An Isolette is a protective environment designed to shield the infant from infection-causing germs.  Kaiser testified that placing her bare feet on the Isolette may have created risk to the infant which could have been life threatening.  Kaiser decided that the Nurse’s actions were in violation of its infection control policies and standards and terminated the Nurse’s employment.

In response, the Nurse argued that there were other Kaiser employees caught in safety policy violations such as improper hand hygiene and fetal heart monitoring practices who were counseled and written up, but not terminated (like the Nurse). 

The statute in question is California Labor Code section 1102.5 or otherwise referred to as Whistleblower Retaliation.  This Labor Code section provides that if an employee reports a violation of law to a government or law enforcement agency, to a person in the Company with the authority to investigate, discover, or correct the violation, or for providing testimony before any public body conducting an investigation into the illegal activity, the employer cannot thereafter retaliate against the employee.  The statute also protects employees if they refuse to participate in activity that would result in a violation of law. 

This statute is highly technical.  For example, if you witnessed illegal activity but only reported it to someone within the Company who did not have the authority to investigate or correct the behavior, you would not have standing to qualify as a whistleblower.  That is why it’s important to ensure that any complaints reference an actual illegal behavior (not just inter-Company policy violations), are in writing, and are directed to someone within the Company with authority to address the behavior. 

Employers are always going to proffer a legitimate business reason to justify an employee’s termination (in this case a health and safety violation) which is why it is also important to note any differential treatment between employees.  For example, in this case, the Nurse proffered evidence that other Kaiser employees were reprimanded or warned about similar safety related violations whereas Plaintiff was terminated for her safety violation. 

If you have witnessed illegal activity at your work (including OSHA, wage and hour, and/or health and safety violations), contact Lyon Legal, P.C. who can help to ensure that your complaints are squarely within the requirements of the statute so that you can be protected from retaliation.  Likewise, if you have suffered from an adverse employment action (i.e. demotion, reduction in pay, or termination) as a result of complaints about illegal behavior contact our office for a free consultation.