In Lawson v. PPG Architectural Finishes, Inc., __ P.3d __, 2022 WL 244731 (Cal., Jan. 27, 2022), the California Supreme Court clarified that whistleblower retaliation claims brought under Labor Code section 1102.5 should not be evaluated under the McDonnell Douglas test, but instead the standard enumerated in Labor Code section 1102.6. Under the section 1102.6 standard, a plaintiff must show that protected activity was a contributing factor in a prohibited action against the employee by a preponderance of the evidence. The employer must then demonstrate with clear and convincing evidence that the action would have occurred for legitimate, independent reasons, even if the employee had not engaged in protected action.
In Lawson, a paint manufacturer employee brought a claim under Labor Code section 1102.5 alleging that his employer discharged him after reporting that paints were purposefully “mistinted” so the manufacturer could avoid having to buy back unpopular colors from retail stores.
Labor Code section 1102.5 prohibits employers from “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 could investigate the non-compliance if the employee reasonably believes “a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or...
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