The Supreme Court of California provided California employers with important clarification on the standard courts will apply when analyzing an employee’s whistleblower retaliation claim arising under Labor Code Section 1102.5.

Faced with a split of California authority on the correct analytical framework applicable to a Section 1102.5 claim, the U.S. Court of Appeals for the Ninth Circuit in Lawson v. PPG Architectural Finishes, Inc. sought clarification from the California Supreme Court. [1] On December 7, 2020, the Ninth Circuit certified the following question: what is the appropriate evidentiary standard for retaliation claims arising under Cal. Lab. Code § 1102.5?

The California Supreme Court resolved all doubt on January 27, 2022, holding “Section 1102.6 provides the governing framework” for whistleblower retaliation claims brought under Section 1102.5, and a “plaintiff need not satisfy” the McDonnell Douglas burden-shifting framework to establish a claim for whistleblower retaliation.[2]

The court’s decision clarifies that the less onerous standard for establishing a claim of retaliation set forth in Section 1102.6 applies to retaliation claims brought under Section 1102.5. Employers should be mindful of the impact the court’s decision will have on future whistleblowing retaliation claims.

California Labor Code §§ 1102.5, 1102.6

Section 1102.5, the California whistleblower statute originally enacted in 1984, provides certain whistleblower protections to employees...

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