In 1984, California enacted one of its most significant whistleblower laws, California Labor Code section 1102.5. This law, as amended, protects employees who report or refuse to participate in unlawful conduct, reflecting a strong public policy interest in encouraging workplace whistleblowers to report illegal activities without fear of retaliation. As stated in Collier v. Superior Court (1991), "This public policy is the modern-day equivalent of the long-established duty of the citizenry to bring to public attention the doings of a lawbreaker."
Under California Labor Code section 1102.5(c), an employer cannot retaliate against an employee for disclosing information, or for the belief that the employee disclosed or may disclose information, to a government agency, a person with authority over the employee, or any public body conducting an investigation, if the employee reasonably believes that the information discloses a violation of state or federal law, or noncompliance with a local, state, or federal rule or regulation.
The statute defines "employee" broadly, including anyone employed by the state, any subdivision thereof, or various public entities (California Labor Code section 1106). This broad definition ensures wide protection for whistleblowers.
An employee can prevail on a retaliation claim even if they did not actually disclose any information, as long as the employer believed the employee disclosed or was going to disclose information. This protection underscores the fundamental role of anti-retaliation laws in safeguarding employees' rights (Assembly Bill No. 1947).
To establish a prima facie case of retaliation, an employee must demonstrate:
- Engagement in a protected activity (e.g., reporting illegal conduct).
- Subjection to an adverse employment action (e.g., termination or demotion).
- A causal link between the two (Mokler v. County of Orange, 2007).
The "materiality" test determines whether an adverse employment action has occurred, encompassing any actions likely to adversely and materially affect an employee’s job performance or career prospects. Minor or trivial actions do not meet this threshold (Patten v. Grant Joint Union High School District, 2005). Even a series of subtle, yet damaging actions can constitute retaliation.
Public employers may require employees to exhaust internal administrative grievance procedures before filing a lawsuit, although there is no general requirement to file a claim with the California Labor Commissioner first (Campbell v. Regents of the Univ. of Calif., 2005).
Whistleblowers may use confidential company documents to expose wrongdoing if the information is reasonably necessary (Erhart v. Bofi Holding, Inc., 2017). Additionally, the protection under section 1102.5 extends to employees refusing to participate in unlawful activities (Nosal–Tabor v. Sharp Chula Vista Medical Center, 2015).
This protection is not limited to the first employee who reports a violation. It extends to all employees who come forward, encouraging widespread reporting (Hager v. County of Los Angeles, 2014). Moreover, protection is afforded to employees who testify or provide information to public bodies conducting investigations.
For a successful retaliation claim, the reported conduct must involve a violation of actual laws, not just perceived improper conduct (Patten v. Grant Joint Union High School Dist., 2005). Additionally, refusal to violate non-binding guidelines may not qualify under section 1102.5 (Nejadian v. County of Los Angeles, 2019).
Employees reporting illegal activities should not fear retaliation. They can seek damages, penalties, and attorney’s fees in a lawsuit based on a violation of section 1102.5. The provision for attorney’s fees ensures that all workers, including low-wage workers, can access legal representation.
The Attorney General's office maintains a whistleblower hotline, and employers must post information about employees’ rights and responsibilities under whistleblower laws, including the hotline number (California Labor Code sections 1102.7 and 1102.8). The Attorney General refers whistleblower callers to the appropriate authorities for review and investigation.
For expert legal assistance and representation, contact SAW LAW GROUP. We are dedicated to protecting whistleblowers and ensuring justice in the workplace.
