The Social Justice Crisis Impacting Low-income California Whistleblowers

I. INTRODUCTION:

A. Although whistleblowers are public servants advocating for the enforcement of fair business practices, they often pay an extraordinary personal and professional price for standing up for justice. When whistleblowers lack access to civil legal representation and are forced to only file complaints with government agencies suffering from “regulatory capture,” the whistleblowers are unlikely to get restitution, and the violations they reported are likely to continue.

B. How have whistleblowers’ actions benefitted society?
“Whistleblowers’ actions have saved the lives of employees, consumers, and the general public, as well as billions of dollars in shareholder and taxpayer funds. Whistleblowers have averted nuclear accidents, exposed large-scale corporate fraud, and reversed the approval of unsafe prescription drugs” (Devine & Maassarani, 2011, p. 4). When whistleblowers’ concerns have not been heeded, consequences such as the Challenger space shuttle disaster, the collapse of Lehman Brothers, and the financial ruin caused by the Bernard Madoff scandal (Devine & Maassarani, 2011, p.3; pp. 32-33) have been the result.

C. What is “regulatory capture” or “corporate capture”?
Regulatory capture (or corporate capture) is what happens when governmental regulatory agencies “become dominated by the interests of the industries they regulate” (Devine & Maassarani, 2011, p. 91) or by “business interests generally” (Gjøvik, 2023). Regulatory capture may be “achieved through the hiring of industry loyalists, a policy shift from oversight to cooperation with the regulated industry, or even bribery” (Devine & Maassarani, 2011, p. 91).

D. Why is regulatory capture a problem?

1. “In instances of regulatory capture, whistleblowing on corporate misconduct is a threat to the regulatory agency as well….In those circumstances, the agency will conduct a sham investigation that finds your claim lacks merit, leaving you without further protection from employer retaliation. Sometimes you will find yourself a target, instead of or in addition to your allegations, and the subsequent report openly attacks your actions or credibility” (Devine & Maassarani, 2011, p. 91).

2. Since “few whistleblowers can afford to finance a lawsuit when they are unemployed and facing years of blacklisting,” filing complaints with governmental regulatory agencies is often the only financially realistic option (Devine & Maassarani, 2011, p. 166) for whistleblowers who cannot secure legal representation on contingency.

3. If there is no realistic chance of success in filing a complaint due to regulatory capture, the procedure “becomes a trap that reinforces legal wrongs, not rights” (Devine & Maassarani, 2011, p. 165) and “employees would be better off not acting on their rights rather than spend time and money for a predictable rubber stamp of whatever harassment they challenge” (Devine & Maassarani, 2011, p. 171). This status quo “deters would-be whistleblowers from coming forward instead of deterring institutions from engaging in misconduct” (Gjøvik, 2023).

E. How has lack of access to civil legal representation combined with the regulatory capture of government agencies to create a social justice crisis for low-income California whistleblowers?

1. While high-income whistleblowers who have experienced harassment, discrimination, and/or retaliation can secure legal representation on contingency or pay for it, low-income whistleblowers are often unable to secure legal representation unless they are part of class-action or PAGA (Private Attorneys General Act) suits and are instead left with filing complaints with state or federal government agencies as their only option for pursuing justice.

2. If these agencies were doing effective investigations, this status quo would not be a problem, but whistleblowers, California state auditor’s reports, and investigations by journalists all indicate that they are not. These agencies appear to be severely dysfunctional and to be suffering from near-total “regulatory capture.” Low-income whistleblowers, who are often the most abused and exploited workers, are thus being deprived of any reasonable chance of getting restitution due to the many serious problems with these government investigations.

3. This status quo is likely to remain unchanged until California whistleblowers have more options for pro bono legal representation, such as a Right to Counsel like that recommended for EU citizens by the European Union Whistleblower Directive, or until these government agencies are significantly reformed.

II. WHAT EXAMPLES OF SEVERE DYSFUNCTION OR “REGULATORY CAPTURE” HAVE CALIFORNIA WHISTLEBLOWERS REPORTED IN FILING COMPLAINTS WITH STATE OR FEDERAL AGENCIES SERVING CALIFORNIA?

A. Whistleblowers have described the following problems (as shared in whistleblower support groups and documented in the videos and reports listed in Section III):

1. Investigators openly hostile to the mission of the agencies they work for and toward complainants: Whistleblowers have reported that agency investigators have openly expressed hostility towards the mission of the regulatory agency they work for and/or towards complainants, and are essentially functioning as second free defense attorneys for corporations instead of the neutral investigators they are paid to be.

2. Evidentiary standards not aligned with those used in civil litigation:

a. Whistleblowers report that investigators are failing to consider as proof of retaliation/disparate treatment the kinds of retaliatory employer behaviors and evidentiary standards commonly used in civil litigation, while refusing to explain what alternative definitions and standards, if any, they are in fact using.

b. Examples of employer actions considered retaliatory in civil litigation may be found in Targeting Dissenters: Tactics of Retaliation (pages 19-31) and Neutralizing Dissent: Tactics of Cover-up (pages 31-40) in Tom Devine and Tarek Maassarani’s (2011) The corporate whistleblower’s survival guide.

c. Examples of facts/types of evidence which have been used to support retaliation claims in litigation may be found on Checklist 3: Proof of Retaliation (pages 309-319) and Checklist 4: Discovery (pages 321-328) in Stephen Kohn’s (2023) Rules for whistleblowers: A handbook for doing what’s right.

3. Investigators engaging in perceived protected class discrimination: Whistleblowers are reporting that investigators have engaged in perceived protected class discrimination by making what the whistleblowers interpreted as discriminatory comments about whistleblowers’ religious beliefs or other protected classes the whistleblowers belong to, failing to honor whistleblowers’ Americans with Disabilities Act requests for accommodations, trivializing or ignoring their serious health conditions, falsifying their case records, and failing to properly investigate their valid claims.

4. Falsification of case records: Whistleblowers are reporting that investigators are falsifying their case records, deleting evidence which supports whistleblowers’ claims, and misreporting what they ask whistleblowers and how whistleblowers respond, such as falsely reporting whistleblowers as having “confessed” to their former employers’ false charges of “misconduct” which whistleblowers expressly denied, misrepresenting whistleblowers’ protests of felony-level misconduct by employers (a protected activity) as “insubordination,” or trivializing whistleblowers’ experiences of retaliation after having reported violations committed by business owners, employees, or clients—also protected activities—as “not getting along”/”personality conflicts” which the government agencies are not required to investigate.

5. No due process rights: Whistleblowers report that investigators are closing their cases with inconclusive findings due to “insufficient evidence” or coercing them into withdrawing their complaints after failing to read, share, or accurately summarize the content of their former employers’ position statements or the types of “evidence” or testimony submitted against them, depriving the whistleblowers of the due process rights they would have in court to refute false accusations.

6. Whistleblowers are reporting that investigators are pretending to have done “investigations” before closing their cases while not having actually looked at complainants’ evidence or contacted their witnesses.

a. Despite whistleblowers having a level of digital and hard copy evidence which not only meets but exceeds that used in similar successful civil litigation cases, whistleblowers report that investigators are closing their cases with inconclusive findings or coercing them into withdrawing their valid claims by telling complainants they will rule against them due to “insufficient evidence” if the whistleblowers do not do so.

b. Whistleblowers are reporting that this is achieved by ignoring their digital and hard copy evidence of company misconduct, whistleblowers’ protected activities, and their employers’ retaliation against them, and failing to ask whistleblowers appropriate follow-up questions or interview their key witnesses.

c. Whistleblowers report that investigators are instead:

1) simply accepting at face value employers’ position statements and manufactured, altered, or substituted personnel/payroll documents (evidence tampering) of which whistleblowers have the originals and/or giving their employers a free pass on not even being able to produce payroll or personnel records corresponding to the relevant time frame; and/or

2) simply accepting at face value the testimony of defense “witnesses” falsely accusing whistleblowers of misconduct when whistleblowers identify these business owners, employees, or client “witnesses” as being complicit in the violations the whistleblowers reported and the whistleblowers have digital and hard copy evidence completely disproving their testimony or at least calling it into question.

7. Investigators are giving complainants false information/helping employers evade responsibility: Whistleblowers are reporting that investigators have given them totally incorrect information about the labor laws applicable to their situation, ignored their documentary evidence of violations of these laws, inappropriately pressured them to withdraw their absolutely valid complaints, and effectively given their former employers a free pass on years of clearly documented violations.

8. Agencies inappropriately denying jurisdiction: Whistleblowers report that investigators have given them incorrect information about which violations are under their agency’s jurisdiction, especially in cases involving different types of legal violations, and/or have not given the whistleblowers accurate information about where to file additional related complaints.

9. Whistleblowers are reporting that agencies are taking months to schedule intake interviews and then missing interviews without apology, further delaying the filing of complaints by months due to lack of available replacement appointment times and potentially causing complainants to lose the right to pursue certain claims due to expired statutes of limitations.

10. Whistleblowers report missing deadlines and losing the right to pursue some or all of their claims due to expired statutes of limitations caused by agency misinformation/not providing information/delays as described in #7, #8, and #9 above.

11. Lack of inter-agency cooperation: Whistleblowers report that individual agencies are failing to even investigate violations under their jurisdiction while also being unable to see “the big picture” of companies committing multiple violations under the jurisdiction of various agencies simultaneously (as would occur in a lawsuit arguing all claims at once) due to lack of inter-agency cooperation and coordination.

12. Case closure at all costs seeming to be prioritized over fair investigations: Whistleblowers report that agencies seem to be using an “assembly-line” model in which the only performance criterion is closing cases as quickly as possible rather than actually doing fair investigations. That apparent sole performance criterion not only allows but actually encourages investigator misconduct while also depriving unrepresented whistleblowers of the only free option for addressing the injustices they have suffered.

13. No accountability whatsoever for gross professional misconduct by investigators: Whistleblowers who have tried to report misconduct by investigators report that agency supervisors appear to be rewarding investigators’ rapid case closures achieved through misconduct with promotions while dismissively telling complainants who attempt to report investigators’ misconduct to get a lawyer and sue if they want something done about either this misconduct or about the original complaint which the agency grossly mishandled. Agency heads are typically unreachable. Contacting the state auditor’s office is currently the only other option, and they are not set up to handle individual complaints.

III. PUBLICLY AVAILABLE ARTICLES, INTERVIEWS, AND AUDITOR’S REPORTS DOCUMENTING THESE LONG-STANDING PROBLEMS:

A. The California Department of Industrial Relations (DIR): The Retaliation unit:

1) California State Auditor’s Office (2019, March). Investigation of improper activities by a state agency and its employees: A director committed gross misconduct when she repeatedly violated merit‑based employment principles and attempted to retaliate against suspected whistleblowers. https://information.auditor.ca.gov/pdfs/reports/I2019-1.pdf

2) Gonzalez, V. (2019, March 26). California department head audited for nepotism, whistleblower retaliation: Director’s daughter accused of taking $129K in fraudulent pay. KCRA 3 News. https://www.kcra.com/article/california-department-head-audited-for-nepotism-whistleblower-retaliation/26952913

3) Wrongful termination complaint nets $250,000 settlement. (2019, August 14). WorkCompCentral. https://www.workcompcentral.com/news/article/id/dcbeff260441ba9e7872d39f4b6ed05a7b044cbf

4) Kuang, J. & Reyes-Velarde, A. (2023, September 1; updated September 5) As more Californians allege on-the-job violations, labor groups say bosses retaliate. CalMatters. https://calmatters.org/california-divide/2023/09/workplace-retaliation-california-labor/

B. The California Department of Industrial Relations (DIR): Division of Labor Standards Enforcement (DLSE)/Labor Commissioner’s Office (LCO):

1) Lazo, A. & Kuang, J. (2023, March 23). ‘A Deep, systemic problem’: persistent backlog forces state audit of California Labor Commissioner’s Office. CalMatters via KQED. https://www.kqed.org/news/11944515/a-deep-systemic-problem-persistent-backlogs-force-state-audit-of-california-labor-commissioners-office

2) California State Auditor’s Office (2024, May 29). The California Labor Commissioner’s Office: Inadequate staffing and poor oversight have weakened protections for workers. https://www.auditor.ca.gov/wp-content/uploads/2024/05/2023-104-Report.pdfhttps://www.auditor.ca.gov/wp-content/uploads/2024/05/2023-104-Factsheet-1.pdf

C. The California Department of Industrial Relations (DIR): California Occupational Safety and Health Administration (Cal/OSHA):

1) Kuang, J. (2024, February 7). California’s workplace safety agency protecting farmworkers? Legislators want to know. CalMatters. http://calmatters.org/politics/capitol/2024/02/california-farmworkers-safety/

Example of regulatory capture: Workers are reporting that Cal/OSHA is actually warning employers in advance of inspections, helping them avoid sanctions.

D. Multiple California state and federal agencies serving California mentioned:

1) Gjøvik, A. (2022, May 23). Field notes on regulatory capture: Part I: Welcome to my personal hellscape of conflicts of interest, obstruction, & arbitrary denials of due process. Big Tech Politics. https://ashleygjovik.substack.com/p/field-notes-on-regulatory-capture

2) Laborvideo. (2022, September 9). Apple toxic. Is it above the law? with whistleblower Ashley M. Gjøvik. [Video]. YouTube. https://youtu.be/cvxNLu7BhaI?si=PTUaCr0wg6zOOp_X

Lack of due process; jurisdictional issues; pressure from government investigators to withdraw her complaint: 48:08-56:30

3) Gjøvik, A. (2023, April 30). Whistleblowers are the conscience of society, yet suffer gravely for trying to hold the rich and powerful accountable for their sins. LLRX (Law and Technology Resources for Legal Professionals). https://www.llrx.com/2023/04/whistleblowers-are-the-conscience-of-society/

4) Laborvideo. (2023, February 1). The Union busting war on Apple workers & NLRB ruling for fired Apple worker Ashley M. Gjøvik [Video]. YouTube. https://youtu.be/ycxIbfO-pG0?si=4vg0MZIpyr-nJm2o

Government investigators’ inaction/misconduct/pressure to withdraw complaint: 28:53-33:50

5) Laborvideo. (2023, February 14). Cal-OSHA, Amazon & corporate capture of California agencies with whistleblower David Gass [Video]. YouTube. https://youtu.be/66jVlyP64To?si=W_InfpLep8sO-IfF

Cal-OSHA/DIR ignored physical evidence of violations (photos): 17:58-18:50
DIR investigator expressed hostility towards the mission of the agency and complainants and also made discriminatory comments regarding Gass’s religious beliefs; the investigator refused to be recorded; when Gass contacted the Attorney General for help, the A.G. informed Gass that the A.G. is in charge of defending state agencies and employees, not helping complainants with reports of agency misconduct: 19:35-24:07
DIR simply accepted Gass’s employer’s “completely made up” explanation for his firing: 32:16
DIR pressured Gass to withdraw his complaint and get a private attorney: 33:18-33:22

6) Laborvideo. (2023, September 9). Apple Whistleblower Ashley Gjøvik on retaliation, toxics [sic] & corruption-poisoning the people & workers. [Video] YouTube. https://youtu.be/9hj0HSkCnL0?si=RdrEQ2vXmdDMZ5jr

Government supervisor no help when Gjøvik complained about investigator misconduct: 20:17-20:55
Institutional betrayal by government agencies: 21:43-21:56
Settlements with NDAs as “hush money”: 22:39-24:26
Government misconduct without recourse; no due process at government agencies: 32:52-33:31
Government agencies pressuring workers not to file complaints or to withdraw them by telling them they will rule against the worker; as a J.D., Gjøvik knew that withdrawal causes the complainant to lose the right to appeal: 33:36-34:47
Only filing a lawsuit offers whistleblowers the due process missing from government investigations: 34:54-35:49

E. Federal Department of Labor: Occupational Health and Safety Administration (OSHA):

1) Government Accountability Office. (2010, August). Whistleblower protection: Sustained management attention needed to address long-standing program weaknesses. https://www.gao.gov/assets/gao-10-722.pdf

2) Nguyen, V., Wagner, L. & Escarmilla, F. (2015, February 23). OSHA whistleblower blows whistle on own agency. NBC Bay Area. https://www.nbcbayarea.com/news/local/osha-whistleblower-investigator-blows-whistle-on-own-agency/77171/)

3) Laborvideo. (2015, February 26). Federal OSHA lawyer Whitman exposes failure to defend whistleblowers and corruption cover-up. [Video]. YouTube. https://youtu.be/x3PTf6F887Q?si=gAnIDAsM0KjngRG5

Whitman told by supervisor to simply dismiss cases after one interview with no investigation: 1:42-1:56
Workers experience retaliation from OSHA: 4:23-4:31
The system is set up to get rid of complaints rather than investigate them: 5:00-5:20
Former OSHA investigators report a “production line” mentality and pressure to close out cases/meet “quotas”: 5:20-5:48
Whitman’s merit findings were changed: “falsification of documents”: 5:48-6:04
Due to OSHA’s ineffectiveness, whistleblowers are now too intimidated to raise safety issues: 6:28-6:43

4) Laborvideo. (2023, December 18). Corporate capture & systemic corruption with lawyer & fired SF OSHA investigator Darrell Whitman. [Video]. YouTube. https://youtu.be/UK6eeeUxunY?si=hkSlFqLHUj1UyvTE

OSHA doesn’t want merit findings: 59-2:24
Workers are now afraid to report health and safety violations: 3:11-3:24
Audits of both OSHA and of the Office of Special Counsel (designed to protect federal government whistleblowers) going back years show that most complaints are never investigated: 3:30-7:18

5) OSHA Trade Release. (2024, April 3rd). Department of Labor seeks ideas, suggestions to improve outreach, training for OSHA whistleblower program at May 15 meeting.https://www.osha.gov/news/newsreleases/trade/04032024-0

F. Federal Department of Labor: Wage and Hour Division:

Government Accountability Office. (2009, March 25). Department of Labor Wage and Hour Division’s complaint intake and investigative processes leave low wage workers vulnerable to wage theft. https://www.gao.gov/assets/gao-09-458t.pdf

The report found that the agency had a poor intake process and mishandled worker complaints by waiting months to process them, ignoring them, lying about progress, closing them without any significant investigation, and in some cases, simply dropping them.

G. The Equal Employment Opportunity Commission (EEOC):

1) Barnes, P.G. (2019, September 4). Is the EEOC protecting workers or discriminatory employers? Forbes. https://www.forbes.com/sites/patriciagbarnes/2019/09/04/is-the-eeoc-protecting-workers-or-discriminatory-employers/?sh=2a53a6b85407

Key excerpts:

“The EEOC found no reasonable cause for discrimination in 64.3 percent of cases, closed 18.3 percent for administrative reasons and 4.8 percent were withdrawn by the charging party. The EEOC found reasonable cause for discrimination in only 4.6 percent of complaints and considered filing a lawsuit in only 3.2 percent of complaints.

Annual statistics from the EEOC show that its percentage of reasonable cause determinations has declined considerably in recent years, from a high of 9.9 percent in 2001. The EEOC found reasonable cause in only 3.5 percent of complaints in 2018; 2.9 percent in 2017, and; 3.2 percent in 2016….

But the problem goes deeper. Once the EEOC has determined there is no reasonable cause for discrimination, the EEOC sends complainants a ‘right to sue’ letter. By that time, many workers are disillusioned by the EEOC’s dismissive handling of their complaint and considerable time has lapsed since the discriminatory event. The EEOC's administrative process may actually discourage workers from taking discriminatory employers to court.”

2) Tomaskovic-Devey, D.T., McCann, C., & Swerzenski, J.D. (2021, July 13). 63% of workers who file an EEOC discrimination complaint lose their jobs. The Conversation. https://theconversation.com/63-of-workers-who-file-an-eeoc-discrimination-complaint-lose-their-jobs-163048

Key excerpt:

“[T]he [EEOC] complaints…rarely led to a successful outcome for the workers who filed them. Our analysis found that legal redress in the form of negotiated or mandated changes in workplace practices occurred in only 7% of all cases. Workers received monetary awards in 12% of the cases – with a median payout of only US$8,500.”

IV. WHAT COULD BE DONE TO CREATE EQUITY FOR LOW-INCOME CALIFORNIA WHISTLEBLOWERS?

A. Expand options for pro bono legal representation, perhaps by creating a Right to Civil Counsel for all California whistleblowers like the one mandated by the European Union Whistleblower Directive.

B. Reform California state regulatory agencies in the following ways:

1. Align evidentiary standards used in state investigations with those used in civil litigation as mentioned in Section II.A.2 above.

It makes absolutely no sense whatsoever that unrepresented whistleblowers are being required to meet a higher evidentiary standard than that used in successful civil litigation standards, especially when many complainants cannot get attorneys, yet that appears to be what is routinely happening in California.

Even plaintiffs who are successful in later civil litigation report having been pressured to drop their cases due to “insufficient evidence” or having had their cases closed with a no-merit finding for that reason. The generally poor quality of state and federal investigations appears to be widely known among California employment lawyers, whose websites use terms such as “so-called investigations,” but not members of the general public, who may assume that no-merit findings are backed up by thorough investigations when in fact they are not.

2. Improve inter-agency coordination with joint investigations under the direction of ONE agency:

Require that “mixed-motive” cases (protected class discrimination + whistleblower retaliation) or retaliation cases involving violations of laws under the jurisdiction of different agencies (such as the Department of Industrial Relations [DIR] and the California Civil Rights Department [CRD]) be handled JOINTLY, under the direction of ONE agency, so that all violations the retaliation victim protested against are considered simultaneously, as they would be in civil litigation.

What whistleblowers have reported is that agencies seem to be competing to avoid taking on complex cases and are failing to adequately investigate even those claims which are under their jurisdiction, depriving complainants of the right they would have in civil litigation to have all illegal aspects of their work environment and retaliation complaint considered simultaneously.

Since the types of employer behaviors in both whistleblower retaliation and protected class discrimination are often similar or overlapping, unrepresented complainants should not have to bear the burden of trying to guess what percentage of the disparate retaliatory treatment they endured was motivated by each element.

The fact that whistleblowers have documentation of multiple kinds of violations should strengthen their cases, just as it does in civil litigation, not harm them, as it does now due to the compartmentalization of agencies and lack of inter-agency coordination.

3. Improve worker education:

a. Create a Workplace Retaliation Complaint Information Sheet:

Create and distribute in workplaces a single document that lists all state and federal agencies where workers experiencing any kind of retaliation can file complaints. Include what the statute of limitation is, the four elements needed to prove a retaliation claim (The employee engaged in a protected activity; the employer knew about it; the employee suffered retaliation/an adverse employment action; the protected activity was a contributing factor), and what kinds of evidence of retaliation each agency will accept.

Inform workers engaged in concerted, protected activity not only on behalf of themselves but others that they may also file a claim with the National Labor Relations Board (Stillman, 2014) alongside those with other state and federal agencies.

Workers currently often don’t know where to file claims, especially in cases involving different kinds of legal violations under the jurisdiction of different state and federal agencies. Filing with the wrong agency can cause workers to miss the deadline for filing with the right one.

4. Put all essential information for unrepresented retaliation complainants on each state agency website.

a. Each state agency website (such as the Department of Industrial Relations [DIR] and the California Civil Rights Department [CRD]) should also prominently display the elements mentioned above on the Workplace Retaliation Complaint Information Sheet, including:

1. the statute of limitations for filing a retaliation/disparate treatment claim with that particular agency

2. the four elements needed to prove a retaliation claim (The employee engaged in a protected activity; the employer knew about it; the employee suffered retaliation/an adverse employment action; the protected activity was a contributing factor)

3. how far back in time evidence can be considered in cases of ongoing violations

4. the kinds of employer actions the agency considers retaliatory/discriminatory and the kinds of evidence the agency accepts as proof of retaliation/discrimination

5. other state and federal agencies where related claims can be filed, such as the National Labor Relations Board if concerted, protected activity for the benefit of other workers is involved (Stillman, 2014), along with the statutes of limitations for filing those claims.

The listing in 4 is critically important if either the agency’s definition of retaliation or evidentiary standards for proving it differs in any way from those used in civil litigation cases as mentioned above in Section II A.2, which they ideally should not.

5. Adopt performance standards at all state agencies which focus on and evaluate the quality of investigations, not just the speed of case closure:

a. Eliminate any existing predetermined deadlines for closing cases within a specific timeframe.

Such artificially imposed deadlines are combining with chronic understaffing, lack of adherence to consistent evidentiary standards, and the absence of due process rights for complainants to virtually guarantee that most cases will be closed without proper investigation, regardless of their merits.

b. Ensure complainants’ due process rights:

1. Require that all complainants immediately be given a written copy of their employer’s position statement. This is the only way to protect complainants from “investigators” who fail to read, understand, or accurately summarize the content of employers’ position statements.

2. Require that complainants be shown the documents their former employers have submitted as their personnel files, job classifications, officially assigned duties, performance evaluations, hours worked, and payroll records. This is necessary because employers are currently able to submit manufactured, altered, or substituted documents which investigators are simply accepting without authentication. Some investigators have simply given employers a free pass on not even being able to produce recent, accurate payroll or personnel records (job descriptions, hours worked, etc.) because they didn’t have any or had destroyed them. Situations like this should raise immediate red flags and trigger appropriate penalties, not case closure without further investigation.

3. If complainants have original documents proving that employers have submitted altered, manufactured, or substituted documents or destroyed relevant evidence of which complainants have original copies, investigators should consider this alteration of evidence as supporting a claim of retaliation as in civil litigation. Investigators should not be allowed to simply accept altered documents from employers without even looking at the complainants’ originals.

4. Require that all interviews be conducted via recorded video conferences and that complainants be immediately emailed a copy of their own recorded interviews. This is the only way to protect complainants from investigators’ misrepresentations of what was said. This format will also allow immediate clarification of any points of confusion plus identification of what additional supporting documents need to be uploaded.

c. Require state agencies to evaluate and track the quality of their investigations, not just case closure speed, by creating and using a performance rubric that ensures:

1. Investigators treat complainants equitably and without discrimination based on their demographics.

2. Investigators consistently follow established evidentiary standards reflected in the rubric, respecting the due process rights of complainants to know and respond to employers’ counter-claims and to have their own evidence and witnesses considered.

3. Investigators respond to complainants’ requests for clarification in a timely and accurate manner.

4. Complainants have the right to review investigators’ case notes regarding their own testimony and evidence and to have misrepresentations corrected before their cases are closed or before they are pressured to withdraw them due to “insufficient evidence.”

d. Create accountability for individual investigators to curb the widespread misconduct complainants are reporting; establish a mechanism for re-instating claims withdrawn or cases closed due to investigator misconduct:

1. California state agencies should use SurveyMonkey-style questionnaires based on the performance rubric mentioned above with yes/no questions and spaces for comments to solicit feedback from complainants on individual investigators BEFORE their cases are closed.

2. Supervisors should be required to approve case withdrawals or case closures and this should only be done AFTER reviewing complainant feedback on their investigator’s performance.

3. Complainant feedback should be compiled and used along with agency performance rubrics to evaluate individual investigators’ performance. Investigators with a high incidence of negative ratings from complainants, especially those indicating perceived discriminatory misconduct, should be disciplined and retrained or replaced.

4. Create an effective way for complainants to report investigator misconduct. Investigators should no longer be allowed to make discriminatory comments to or about complainants, falsify their case notes, delete their evidence, coerce them into withdrawing valid claims, or close their cases without proper investigation after simply accepting the false testimony of “witnesses” complicit in the legal violations they reported along with altered, manufactured, or substituted documents submitted by their employers.

There is currently no effective way for complainants experiencing these issues to get help: State agencies block complainants’ access to their directors’ contact information, and immediate supervisors may simply help protect their subordinates from any consequences of their misconduct as it may also reflect poorly on the supervisors themselves.

5. Create a mechanism for re-instating claims withdrawn or cases closed due to investigator misconduct. If an investigator has coerced a complainant into withdrawing a valid claim by giving misinformation, there should be a way to reinstate that claim so that complainants who cannot access legal representation to pursue civil litigation do not lose their one and only option for pursuing justice.

6. Require mandatory training in DARVO, Americans with Disabilities Act (ADA) compliance, and trauma-informed interviewing practices:

a. All California state investigators and supervisors should be required to have training in legally required ADA accommodations, trauma-informed interviewing practices, and DARVO---the Deny, Attack, and Reverse Victim and Offender defense strategy commonly used to defeat claims filed by both whistleblowers and victims of harassment/discrimination.

Information about DARVO and its traumatizing effect on victims can be found on Dr. Jennifer Freyd’s (2024) continually updated webpage https://dynamic.uoregon.edu/jjf/defineDARVO.html and in Alford (2001; 2015), Ahern (2018), Oransky (2018), Garrick (2022), and Suskind (2024).

What appears to be happening based on whistleblowers’ reports is that some California state investigators appear to be simply accepting as true false DARVO-inspired defense counter-accusations against complainants and are treating traumatized complainants almost like criminals instead of the genuine victims of very well-documented discriminatory treatment/whistleblower retaliation many of them are.

V. CONCLUSION:

The current lack of access to legal representation for low-income California whistleblowers combined with the extreme dysfunction/regulatory capture of government agencies has created a social justice crisis which actively discourages such workers from speaking up about legal or ethical violations or filing complaints while also enabling businesses to avoid compliance. This social justice crisis is likely to continue until low-income California whistleblowers have access to pro bono civil legal counsel such as that recommended by the European Union’s Whistleblower Directive or until the governmental regulatory agencies serving California workers are significantly reformed.

References

Ahern, K. (2018). Institutional betrayal and gaslighting: Why whistle-blowers are so traumatized. The Journal of Perinatal & Neonatal Nursing, 32(1), 59–65. https://doi.org/10.1097/JPN.0000000000000306

Alford, C.F. (2001). Whistleblowers: Broken lives and organizational power. Cornell University Press.

Alford, C.F. (2015, April 17). The trauma of whistleblowers: stuck in static time. Trauma Theory. https://traumatheory.com/the-trauma-of-whistleblowers-stuck-in-static-time/

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