With political campaigns well underway, the protection of “free speech” and concerns that regular political discourse could create potential liability are mounting.  Notably, within the last year, California’s Fair Employment and Housing Commission expanded upon a number of definitions and specific employment practices prohibited under the Fair Employment and Housing Act (“FEHA”). Not listed among

Be cautious with the employee who “doth protest too much.”  The law protects whistleblowers. Employers must be careful to avoid retaliating against employees who report good faith concerns, even when such concerns prove meritless. But this does not leave employees free to blackmail employers by threatening to makes claims unless the employer capitulates to settlement demands. In Stenehjem v. Sareen, a California Court of Appeal allowed an employer to pursue a counter-claim for extortion where its employee allegedly sent an email threatening to report it to the U.S. Attorney and file a federal False Claims Act action unless it settled the employee’s defamation lawsuit. The Court also rejected the employee’s claim that his threat constituted protected speech under California’s anti-SLAPP statute. While Stenehjem presents a welcome development for California employers, its core allegations do not arise often. Employers should thus review situations closely with counsel before leaping to the conclusion that an employee’s “threat” to report concerns amounts to extortion.  
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