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Carl Kanowsky: Whistleblowers’ law and the vikings

It’s the law

Posted: February 25, 2011 1:55 a.m.
Updated: February 25, 2011 1:55 a.m.
 

We rushed our longship Drekar onto shore. I yelled at the crew, “Now, you motherless sons of jackals, let’s raid, pillage and plunder like we’ve never raided, pillaged and plundered  before. Let’s make our Norse ancestors proud.”

A loud cheer erupted from the mangy, dirty, aromatic scum I call my men. I’m Erik the Beardable. (I could grow a beard, but I choose not to — it kinda itches in the summer.)

A loud cheer from everyone but Loki. “Poky Loki,” the guys called him. He not only moved slowly but he complained about everything.

“But Lord the Beardable, it’s not right to pillage and plunder,” Loki would whine. “It goes against my religion, and plundering without the consent of our king is against the law.

“In fact, I have already talked to his ambassador about this, and they are starting an investigation. Beyond that, not all of our victims take kindly to being raided. Why, just last week on our voyage to Scandinavia, one of the villagers yelled really loudly at me as I burned down his home. It hurt my ears.”

I was so sick and tired of listening to Loki that I was going to run him through. I’d decided to fire him later anyway for good measure — I didn’t want the men to think I would tolerate belly-aching. I drew my sword to end his employment when my first mate (and general counsel), Sedgwick (“Sedgy” for short), put his hand on my arm.

“Yo, Erik, chill out. You can’t fire Loki for being a whistleblower.” I demanded to know why I couldn’t. Loki was disruptive, brought a pall over the crew with his attitude and never fulfilled his duties of rowing in sync with everyone else.

“I understand your frustration, oh, Beardable one. But it’s against California law to retaliate against an employee who is engaging in a protected activity, such as complaining to the authorities about unsafe working conditions or violations of law. In fact, let me quote from the California Labor Commissioner on that topic.”

The Labor Commissioner has ruled: “An employer may not retaliate against an employee who is a whistleblower. An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.”

“But Sedgy, what can I do? Poky Loki is not just a pain in our collective behinds but he also slows us down. In fact, he drags us down so much that A Tila and his Huns are beating us to the best sacks. If I can’t do something about Loki, I may get my longship taken away and have to become (heavy sigh) a politician,” I bemoaned.

“Not to worry, my Lord,” said Sedgy. “We give Loki enough rope, he’ll hang himself (figuratively speaking, of course).

You document how you’ve tried to train him on how to row. You then write him up for failing to do it correctly after repeated lessons and warnings. You demonstrate how this impacts the rest of the ship so we are losing out on great opportunities. You make sure that there is no connection with his complaining to the authorities. With sufficient patience and actually giving Loki a real chance to succeed, if he can’t make the grade — you axe him (again, figuratively. We don’t want OSHA on our case.)”

I took Sedgy’s advice and worked with Loki. It took longer, but we built up a strong case on how Loki just could not cut it despite our best efforts. As a result, we were able to rid ourselves of his distraction. I rewarded Sedgy by giving him first pick of the bounty from our next escapade. And I learned it is best to seek Sedgy’s advice before, not after, I have acted.

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by e-mail at cjk@kanowskylaw.com. Kanowsky’s column represents his own views, and not necessarily those of The Signal. Nothing contained herein shall be or is intended to be construed as providing legal advice.

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