California Supreme Court clarifies the proper standard for whistleblower retaliation claims under Labor Code section 1102.5


By: Jaemie Paraon

On January 27, 2022, the California Supreme Court clarified that whistleblower retaliation claims brought under Labor Code section 1102.5 must be evaluated under the framework prescribed in section 1102.6. Under section 1102.6, the plaintiff employee must first establish that it is more likely than not that retaliation for an employee’s protected activities was a contributing factor in an adverse employment action.  If the plaintiff succeeds, the defendant employer must then demonstrate by clear and convincing evidence that it would have still taken the adverse action even if the plaintiff had not engaged in protected activity.   

The employer-friendly McDonnell Douglas approach, which is typically applied in discrimination actions, requires the employee to show that the employer’s proffered legitimate reason for an employment action was a pretext for discrimination or retaliation.  While the court acknowledged that McDonnell Douglas was useful in proving other employment discrimination claims under the California Fair Employment and Housing Act (“FEHA”), the court emphasized that it should not be applied to whistleblower claims under section 1102.5. The state high court found support for its ruling from decisions by other courts addressing statutory provisions similar to section 1102.6 and finding the McDonnell Douglas framework inapplicable in those instances. The court added that by enacting section 1102.6, the legislature made clear that the section 1102.6 standard applied, not McDonnell Douglas or any other standard.   

The plaintiffs’ bar will likely celebrate the California Supreme Court’s endorsement of a more employee-friendly evidentiary standard. As the landscape of California labor and employment law is constantly evolving, please contact your FMG attorney for more information on how to keep up with these actively changing laws. Find an FMG labor attorney here.