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Posted on February 28, 2022 | Employment Law
Recently, the California Supreme Court in Lawson v. PPG Architectural Finishes, Inc. clarified what the standard of proof is for litigating whistleblower claims under Labor Code section 1102.5. Labor Code section 1102.5 prohibits employers from retaliating against employees in California for disclosing a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. It also prohibits employers from retaliating against employees who refuse to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
There has been some confusion about what the standard of proof is in these claims. The California Supreme Court stated the following in Lawson:
First, it must be “demonstrated by a preponderance of the evidence” that the employee’s protected whistleblowing was a “contributing factor” to an adverse employment action. (§ 1102.6.) Then, once the employee has made that necessary threshold showing, the employer bears “the burden of proof to demonstrate by clear and convincing evidence” that the alleged adverse employment action would have occurred “for legitimate, independent reasons” even if the employee had not engaged in protected whistleblowing activities. (Ibid.)
This “clear and convincing” standard places a much higher burden on California employers to justify their termination decision when it comes to an employee who shows that the whistleblowing activity was a “contributing factor” (even if it wasn’t the only factor) of the termination or retaliation.
The experienced attorneys at The Law Office of Omid Nosrati handle whistleblower claims on behalf of employees in Los Angeles and throughout Southern California. If you believe you have been a victim of whistleblower retaliation, feel free to contact us at 310-553-5630 for a free case evaluation.