On January 27, 2022, the Supreme Court of California issued a decision that changes the burden for employers that are defending against current or former employees’ whistleblower retaliation claims. In Lawson v. PPG Architectural Finishes, Inc., No. S266001,___ Cal.5th ___, the Court answered a question that the Ninth Circuit had certified in an effort to dispel “widespread confusion” over the evidentiary standard for retaliation claims bought under California Labor Code section 1102.5. Some courts had concluded the traditional burden-shifting framework set out in McDonnell Douglas Corp. v. Green (1972) 411 U.S. 792, should apply, with plaintiffs having to prove that they were retaliated against for a pretextual reason. Others had decided that the more employee-friendly California Labor Code section 1102.6 should apply, with employers having to prove by clear and convincing evidence that the plaintiffs would have suffered the challenged consequence (such as losing their jobs) even if they had not identified any wrongdoing. The California Supreme Court sided with the latter group, holding that section 1102.6’s framework applies both on summary judgment and at trial.
In Lawson, the plaintiff sued his former employer under section 1102.5 for firing him after he complained of allegedly fraudulent practices. The district court granted the employer’s motion for summary judgment on the ground that the plaintiff failed to demonstrate that the employer’s stated reasons for...
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