Not for protected whistleblowing. Under California Labor Code § 1102.5, your employer cannot retaliate against you for reporting something you have reasonable cause to believe violates the law, or for refusing to take part in something that would violate the law. If your report was a contributing factor in what happened to you, your employer must prove by clear and convincing evidence that it would have done the same thing anyway for legitimate, independent reasons. Some deadlines are as short as one year.
Jack Fernandes personally reviews California whistleblower retaliation cases. No cost to find out where you stand. Start by filling out the intake form on our website. You can also call 619-935-9678 or email info@jackfernandeslaw.com.
What counts as whistleblower retaliation?
Under Labor Code § 1102.5, your employer cannot retaliate against you for any of the following:
- Reporting a suspected violation to a government or law enforcement agency, to a person with authority over you, or to another employee who has authority to investigate, discover, or correct the problem. Giving information or testimony to a public body conducting an investigation, hearing, or inquiry is protected too (§ 1102.5(b)).
- Refusing to take part in something that would result in a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation (§ 1102.5(c)).
- Being suspected of reporting. Your employer cannot retaliate because it believes you disclosed, or may disclose, information (§ 1102.5(b)).
- Reporting or refusing at a former job (§ 1102.5(d)), or being a family member of someone who has, or is perceived to have, engaged in protected acts (§ 1102.5(h)).
To be protected, you need “reasonable cause to believe” the information shows a violation of a state or federal statute, or of a local, state, or federal rule or regulation. It does not matter if reporting is part of your job duties (§ 1102.5(b)). The California Supreme Court has also held that a protected disclosure includes reports or complaints made to an employer or agency even if the recipient already knows of the violation (People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719).
One limit: § 1102.5 does not apply to actions by employers against employees who violate the confidentiality of the lawyer-client privilege, the physician-patient privilege, or trade secret information (§ 1102.5(g)).
Firing is one form of retaliation, but not the only one. Labor Code § 98.6(b)(1) also covers employees who are “discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to an adverse action, or in any other manner discriminated against in the terms and conditions of their employment” for conduct covered by Chapter 5 (commencing with Section 1101) of Part 3 of Division 2 of the Labor Code, which includes § 1102.5.
How do I prove whistleblower retaliation?
Under Labor Code § 1102.6, proof happens in two steps:
| Step | Who has the burden | What must be shown |
|---|---|---|
| 1 | You | By a preponderance of the evidence, that your protected activity was a contributing factor in the action against you |
| 2 | Your employer | By clear and convincing evidence, that it would have taken the same action for legitimate, independent reasons even if you had not engaged in protected activity |
The California Supreme Court has held that § 1102.6 governs § 1102.5 claims (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703). Under that decision, you do not have to prove that your employer’s stated reason was a pretext, meaning that it was not the real reason. You have to show that your report or refusal was a contributing factor. That can be enough even if your employer also had other, legitimate reasons for the action.
Labor Code § 98.6(b)(1) adds that if an employer takes a prohibited action within 90 days of the protected activity covered by that section, “there shall be a rebuttable presumption in favor of the employee’s claim.” Whether and how that presumption applies to a particular claim under § 1102.5 is a question to ask an attorney.
Hypothetical example: An employee reports unpaid overtime to HR in writing on March 3 and is fired “for performance” on March 20, despite good reviews. If she shows her report was a contributing factor, her employer would then have to prove by clear and convincing evidence that it would have fired her anyway for legitimate, independent reasons.
What can I recover if my employer retaliated against me?
- A civil penalty. Up to $10,000 per employee for each violation, awarded to the employee who was retaliated against, in addition to other remedies (§ 1102.5(f)(1)).
- Attorney’s fees. A court may award reasonable attorney’s fees to a plaintiff who brings a successful action (§ 1102.5(j)).
- Reinstatement and lost pay. Reinstatement, plus reimbursement for lost wages and work benefits caused by the retaliation (§ 98.6(b)(1)).
How long do I have to act?
| Type of claim | General deadline |
|---|---|
| Retaliation complaint to the Labor Commissioner | 1 year, which may be extended for good cause (Cal. Labor Code § 98.7(a)(1)) |
| Lawsuit under Labor Code § 1102.5 | Courts have disagreed. One federal court, in Ayala v. Frito Lay, Inc. (E.D. Cal. 2017) 263 F.Supp.3d 891, applied 3 years to a damages claim (Cal. Code Civ. Proc. § 338(a)). It also found persuasive a decision treating a claim for the § 1102.5(f) civil penalty as subject to 1 year (Cal. Code Civ. Proc. § 340(a)). |
As of Ayala, no published California court decision had decided the lawsuit deadline. Don’t wait. Get advice early.
What should I do if I think I’m being retaliated against?
- Put your report in writing. Say what you believe is unlawful, who you told, and when.
- Keep a timeline. Note each event after your report: what happened, the date, and who saw it. Keep copies of your reviews and messages you already have.
- Be careful with company documents. Check with an attorney before taking anything that is attorney-client or physician-patient privileged, or any trade secret material (see § 1102.5(g)).
- Don’t sign anything yet. Have any document your employer asks you to sign reviewed by an attorney first.
- Get help early, before deadlines pass.
Frequently asked questions
Do I have to report to a government agency?
No. A report to a person with authority over you, or to another employee with authority to investigate, discover, or correct the problem, can be protected (Cal. Labor Code § 1102.5(b)).
What if I was wrong and nothing illegal happened?
The law asks whether you had reasonable cause to believe the information showed a violation (Cal. Labor Code § 1102.5(b)). The California Supreme Court has described that requirement as one of objective reasonableness (Kolla’s, 14 Cal.5th 719). Whether your belief qualifies is a question to ask an attorney.
Does it matter if reporting problems is part of my job?
No. The law protects disclosures regardless of whether making them is part of your job duties (Cal. Labor Code § 1102.5(b)).
Do I need a lawyer?
Any person who believes they were discharged or otherwise discriminated against in violation of a law under the Labor Commissioner’s jurisdiction may file a complaint with the Labor Commissioner (Cal. Labor Code § 98.7(a)(1)). You can also talk to an attorney at any point.