An employer in California is prohibited by law from retaliating against an employee who complains to his employer about what s/he believes to be illegal conduct on the part of the employer.
California Labor Code Section 1102.5 provides,
(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
…
(f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section.
…
(j) The court is authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions.
Amended by Stats. 2020, Ch. 344, Sec. 2. (AB 1947) Effective January 1, 2021.
An employee engages in protected activity under Lab C §1102.5(b) when he or she discloses information that the employee has reasonable cause to believe shows a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties, to a government or law enforcement agency, a person with authority over the employee, or another employee who has the authority to investigate, discover, or correct the violation or noncompliance (see, e.g., Hawkins v City of Los Angeles (2019) 40 CA5th 384, 393).
“To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation which may have been violated by the conduct he disclosed. [Citation.]” Fitzgerald v. El Dorado County (E.D.Cal. 2015) 94 F.Supp.3d 1155, 1172.
An employee’s motivation in disclosing the information is irrelevant, and thus the disclosure need not have been made in good faith and solely for the public good. Mize-Kurzman v Marin Community College Dist. (2012) 202 CA4th 832, 850.
A disclosure under Labor Code §1102.5 is protected,
- “regardless of whether disclosing the information is part of the employee’s job duties,” see McVeigh v Recology San Francisco (2013) 213 CA4th 443, 469; and
- if the disclosure is to an official body or “a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance.” See Killgore v SpecPro Prof. Servs., LLC (9th Cir 2022) 51 F4th 973, 984.
California Labor Code Section 1102.6 provides,
In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.
The plaintiff in an 1102.5 retaliation case need not establish a causal link between the plaintiff’s engagement in protected activity and the adverse employment action. Engagement in a protected activity must only be a “contributing factor” in the alleged adverse employment action.
Under Lab C §1102.5(j), the trial court may award reasonable attorney fees to a plaintiff who brings a successful action for a violation of the provisions of Lab C §1102.5.