Labor Code section 1102.5 claims are playing an increasingly prominent role in California employment litigation. Historically pled as secondary to more familiar discrimination or retaliation claims under the Fair Employment and Housing Act (FEHA), whistleblower claims under section 1102.5 are now often at the forefront. This trend reflects developments in case law and procedural strategy that distinguish 1102.5 claims from their FEHA counterparts.

This article outlines key differences between these statutory schemes, including legal standards, burdens of proof, procedural considerations, and the broad scope of whistleblower protections under California law.

Statutory Purpose and Scope

Labor Code section 1102.5 prohibits retaliation against employees who disclose, or are perceived to have disclosed, information about violations of laws, rules, or regulations. It covers both external disclosures to government agencies and internal complaints made to individuals with authority within the organization.

FEHA, codified at Government Code section 12900 et seq., prohibits retaliation against employees who oppose or report conduct made unlawful by the statute, including discrimination and harassment based on protected characteristics. While both laws address retaliation, the statutory focus and underlying public policy differ.

Causation and Burdens of Proof

The causation standards and burdens of proof under these two statutes differ significantly.

Under FEHA, retaliation claims require the employee to prove that the protected activity was a substantial motivating factor in the adverse employment decision. This standard was articulated by the California Supreme Court in Harris v. City of Santa Monica (2013) 56 Cal.4th 203.

In contrast, Labor Code section 1102.5 claims are governed by a burden-shifting framework clarified in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703. The California Supreme Court in Lawson held that section 1102.6 sets forth the applicable standard: the employee must first establish by a preponderance of the evidence that their whistleblowing was a contributing factor in the adverse action. The burden then shifts to the employer to demonstrate, by clear and convincing evidence, that the same decision would have been made for legitimate, independent reasons.

This two-step framework under 1102.5 creates a higher evidentiary burden for employers compared to the standard applicable under FEHA. It may also reduce the likelihood of summary judgment in some cases, especially where there are contested facts around the employer’s motive.

Procedural Differences

The two statutes also differ in their procedural requirements and timelines:

  • Administrative exhaustion: FEHA requires employees to exhaust administrative remedies before filing suit. Section 1102.5 does not require administrative exhaustion.
  • Statute of limitations: For FEHA, employees must file an administrative complaint within three years of the alleged unlawful practice. For 1102.5, the applicable statute of limitations is also three years, as confirmed in Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352.
  • Remedies: Both statutes provide for reinstatement, back pay, compensatory damages, and attorney’s fees. Courts have recognized that punitive damages are available under FEHA. For section 1102.5, the availability of punitive damages remains less clearly defined but may be pursued in cases involving malice, fraud, or oppression.

Scope of Protected Activity

Section 1102.5 is notably broad in defining what constitutes protected whistleblowing. The statute does not limit the types of laws, rules, or regulations that may be the subject of an employee’s disclosure. This absence of specificity has allowed courts to recognize a wide range of underlying legal violations as suitable for whistleblower protection.

California courts have found section 1102.5 to protect disclosures involving:

  • Wage and hour violations, such as unpaid overtime or missed meal and rest breaks.
  • Workplace safety concerns, including violations of Cal/OSHA standards.
  • Environmental noncompliance, such as improper handling of hazardous waste.
  • Healthcare fraud, including billing irregularities in medical settings.
  • Violations of public health rules, including COVID-19-related mandates.
  • Financial misconduct, including misreporting or failure to comply with corporate governance rules.

In People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719, the California Supreme Court confirmed that a disclosure is protected even when made to a supervisor who already knows of the reported conduct. The Court held that a “disclosure” under section 1102.5 includes revealing information to an employer, regardless of whether that information was previously known.

The statute also protects disclosures based on an employee’s reasonable belief that a violation has occurred. The underlying conduct does not need to be unlawful so long as the employee reasonably believed that it was. This objective standard further broadens the statute’s reach and protects a wider range of internal and external complaints.

Implications for Litigation and Settlement

The procedural and evidentiary differences between these claims can affect case dynamics in several ways.

  • The burden-shifting framework under section 1102.5 may allow plaintiffs to survive summary judgment even where FEHA claims are subject to dismissal under a higher causation standard.
  • Because section 1102.5 does not require administrative exhaustion, plaintiffs can proceed directly to court, which may accelerate the pace of litigation and discovery.
  • The clear and convincing evidence requirement imposed on employers may complicate efforts to resolve claims early, particularly if documentation around the employer’s rationale is limited or inconsistent.

Defense counsel should secure all available documentation supporting the reasons and rationale behind an adverse employment decision as early as possible. This is critical not only for rebutting the whistleblower claim under 1102.5 but also for responding to FEHA allegations. Early evaluation of this documentation can help frame defense strategy and inform realistic settlement ranges.

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Labor Code section 1102.5 continues to gain significance in the employment litigation landscape. Its broader scope, more lenient causation standard for employees, and heavier evidentiary burden for employers distinguish it from FEHA retaliation claims. For employment litigators, the expanding use of section 1102.5 underscores the need to evaluate both statutes carefully and understand how they interact in today’s employment cases.

The post The Rising Profile of Labor Code Section 1102.5 Claims: A Comparative Look at Whistleblower and FEHA Retaliation Litigation appeared first on Steve Mehta Mediator.