Paid administrative leave may be considered an adverse employment action, a California Appellate court found in Whitehall v. Cty. of San Bernardino.  In Whitehall, the plaintiff was employed by San Bernardino County Children and Family Services (CFS) and was assigned to investigate a case in which a nine-month old baby died under suspicious circumstances. Plaintiff obtained the police report which showed the deceased child and four other children were living uninhabitable conditions. The report contained photographs of children with ligature and burn marks. However, the CFS deputy director instructed plaintiff to withhold certain photographs and instead provide altered photographs of the home to the court.

Uncomfortable with her supervisor’s actions, Plaintiff sent the original police report, including the unaltered photographs to the County Counsel’s Office. Shortly thereafter, plaintiff was removed from the case, and she retained an attorney to advise on her potential liability. Plaintiff and three other CFS employees filed a motion with the court, in an effort to advise the court of the potential fraud perpetrated by the CFS. Plaintiff then was immediately placed on paid administrative leave for two months, and later was advised of her termination. Plaintiff however resigned before her official termination and filed suit against the County for whistleblower liability and retaliation. The County filed a Special Motion to Strike the Complaint as a SLAPP suit. The trial court denied the County’s motion and the Appellate Court affirmed, finding that Plaintiff’s claim survived an Anti-SLAPP challenge because her claim was likely to prevail on the merits.

The Appellate Court held that while the determination of an adverse employment action is analyzed on a case by case basis, the facts here were clear; “plaintiff did not request the administrative leave, and it was not intended as a reward or accomodation to plaintiff”[1] The Court found the administrative leave to be punitive, as its purpose was to investigate plaintiff’s alleged wrongdoing. The fact that plaintiff was compensated for this time was immaterial. Accordingly, the trial court’s finding of an adverse employment action was upheld.

The holding in Whitehall was recently affirmed in Taswell v. The Regents of the Univ. of California, where the court denied summary judgment on the grounds that genuine issue of material fact as to whether a causal connection existed between employee’s whistleblowing activities and the adverse employment action at issue: paid administrative leave.

Employers are advised that placing employees on paid administrative leave does not shield them from future liability. Seeking counsel prior to imposing any type of discipline, including paid administrative leave, is recommended.