Expanded Protection for Whistleblowers: California Labor Code Section 1102.5 

Whistleblowers are people who speak out about what their employers are doing-either by complaining to the government or by complaining to someone at their company.  California Labor Code section 1102.5 is generally known as the “whistleblower law. “  For thirty years, Section 1102.5 has protected workers who reportGear-and-Gavel_dark-blue illegal conduct.

In late 2013, Section 1102.5 was amended in several important ways.  Each of these amendments expanded the protections that are available to people who complain about conduct in their workplace.  Three of these amendments are described below.

First, Section 1102.5 was expanded to include complaints by an employee to “a person with authority over the employee” or “another employee who has the authority to investigate, discover, or correct the violation…..”  Previously, Section 1102.5 was limited to complaints to government or law enforcement agencies.

Now, with this amendment, Section 1102.5 protects workers who make internal complaints to their supervisors.  It also protects workers who complain, for example, to a company’s HR department or employee hotline.

It is important to note that an employee need not be right when they make their complaint.  Instead, the employee need only have a “reasonable belief” that the conduct at issue is illegal.  Under Section 1102.5, it doesn’t matter whether an employee actually prevails on their complaint.  It only matters that the complaint is made in good faith.

Here is an example of how this new expansion of the law has played out in one of Hunter Pyle Law’s cases:  Our client filed a claim with the Department of Labor alleging that the employer was violating the Family and Medical Leave Act.  She also complained to her HR department.  Our client was then terminated.

Prior to the new amendments, her first claim would have been protected by Section 1102.5.  Her second claim would not have been protected.  Under the current version of Section 1102.5, both of her complaints are protected.

Additionally, in our case the Department of Labor investigated and found that the company was acting illegally.  But even if the Department of Labor had found no violation, our client would still have been protected because she had a reasonable belief that the company’s conduct violated the Family and Medical Leave Act.

A second way in which Section 1102.5 was expanded was to increase the types of complaints that can serve as a basis for protected conduct.  Previously Section 1102.5 protected complaints of conduct that violated either federal or state laws and regulations.  Now, Section 1102.5 protects complaints regarding conduct that violates “local” rules or regulations.

This expansion therefore includes complaints that a company’s conduct violates municipal ordinances.  Cities like San Francisco and Oakland have extensive rules and regulations.  By including complaints that involve such local rules, this expansion dramatically enlarges the types of complaints that may be protected.

The importance of this expansion is highlighted by the case of Edgerly v. City of Oakland (2013) 211 Cal. App. 4th 1191.  In Edgerly, the plaintiff, the former administrator for the City of Oakland, claimed that she had been fired for refusing to violate the Oakland City Charter and municipal code.  The Court of Appeal dismissed these allegations because they did not involve state or federal rules or regulations.  Ms. Edgerly was not allowed to proceed in her case under the old version of Section 1102.5.  Under the new version, she probably would have been allowed to present her Section 1102.5 claims to a jury because the new version includes complaints involving city charters and municipal codes.

A third way in which Section 1102.5 was expanded was with respect to whether or not the employee actually disclosed any information in making a complaint.  Under the old version of Section 1102.5, the employee had to actually disclose information.  Under the current version, it is illegal for an employer to fire someone “because the employer believes that employee disclosed or may disclose information.”  (emphasis added)

In other words, an employee need not actually make a complaint to be protected under Section 1102.5.  It is enough if the employer believes that the employee has or will in the future make such a complaint.

These amendments to Section 1102.5 are brand new, and relatively untested.  However, they greatly increase the type of conduct that is protected.  This, in turn, provides increased protection to workers in California who believe that their employers are violating the law.

Section 1102.5 is particularly powerful because Labor Code section 1102.6 has a unique enforcement device.  Under Section 1102.6, once a worker demonstrates by a “preponderance of the evidence” that an activity protected by Section 1102.5 contributed to the employer’s decision, the burden of proof then shifts to the employer.  The employer must then prove by “clear and convincing evidence” that it would have taken the action anyway, even if the worker had not engaged in activities protected by Section 1102.5.

The preponderance of the evidence test is easier to meet than the clear and convincing evidence test.  Section 1102.6 therefore tilts the playing field in favor of the employee who complains.

Hunter Pyle Law has handled a number of cases involving Section 1102.5.  Attorney Hunter Pyle was retained as an expert to testify in a case involving Section 1102.5.  If you have questions about whether Section 1102.5 might apply to you, please do not hesitate to contact us for a free consultation.  We can be reached at 510.444.4400, or at inquire@hunterpylelaw.com.