Whistleblower Claims
California Labor Code section 1102.5 — California's primary whistleblower protection statute — prohibits employers from retaliating against employees who disclose suspected violations of law to a government or law enforcement agency, to a supervisor, or to another employee with authority to investigate. It also protects employees who refuse to participate in conduct they reasonably believe is unlawful.
Elements of a Whistleblower Retaliation Claim
California law sets out precisely what a plaintiff must prove to win at trial — giving you a clear picture of exactly what your case requires. Under Labor Code section 1102.5, a plaintiff must prove each of the following:
- The plaintiff was employed by the defendant;
- The plaintiff disclosed, or the defendant believed the plaintiff had disclosed or intended to disclose, information about a suspected violation of law to a government or law enforcement agency, to a supervisor, or to another employee with authority to investigate — or the plaintiff refused to participate in an activity the plaintiff reasonably believed was unlawful;
- The defendant subjected the plaintiff to an adverse employment action;
- The plaintiff's protected activity was a contributing factor in the adverse employment action; and
- The defendant cannot demonstrate, by clear and convincing evidence, that it would have taken the same action for independent, legitimate reasons.
Contributing Factor — A Lower Standard
Unlike FEHA retaliation claims, which require proof of a "substantial motivating reason," whistleblower claims under Labor Code section 1102.5 require only that protected activity was a "contributing factor" in the adverse action. This is a meaningfully lower threshold. Once a plaintiff establishes contributing factor causation, the burden shifts to the employer to prove by clear and convincing evidence that it would have taken the same action regardless.
What Qualifies as Protected Disclosure
The disclosure must concern a reasonably suspected violation of a federal, state, or local law, rule, or regulation. The employee does not need to be correct that a violation occurred — only that the belief was reasonable. Internal complaints to a supervisor or HR may qualify, not just reports to outside agencies.
Attorneys' Fees
A prevailing plaintiff in a Labor Code section 1102.5 action is entitled to an award of reasonable attorneys' fees and costs. (Lab. Code § 1102.5(j).)
Frequently Asked Questions
What is a whistleblower under California law?
Under Labor Code section 1102.5, a whistleblower is an employee who discloses, or threatens to disclose, information about a suspected violation of law to a government agency, to a supervisor, or to another employee with authority to investigate. Employees who refuse to participate in conduct they reasonably believe is unlawful are also protected.
What is the standard of proof for a whistleblower claim?
Unlike FEHA retaliation claims, which require a substantial motivating reason, whistleblower claims under Labor Code section 1102.5 require only that protected activity was a contributing factor in the adverse action. This is a meaningfully lower standard. Once established, the burden shifts to the employer to prove by clear and convincing evidence that it would have taken the same action regardless.
Do I have to report to a government agency to be protected?
No. Internal disclosures to a supervisor or another employee with authority to investigate also qualify for protection under Labor Code section 1102.5. You do not need to have filed a complaint with a government agency.
Can I recover attorneys fees in a whistleblower case?
Yes. A prevailing plaintiff in a Labor Code section 1102.5 action is entitled to an award of reasonable attorneys fees and costs. (Lab. Code section 1102.5(j).) This makes whistleblower cases more accessible for employees who might otherwise struggle to afford litigation.
Request a Confidential Consultation
If you reported suspected wrongdoing and believe your employer retaliated against you, Teti Law offers confidential consultations to evaluate your matter.