Whistleblower Rights under California Labor Code Section 1102.5

A whistleblower is someone who calls attention to unlawful behavior or activities in the workplace. California Labor Code section 1102.5 is one of the strongest whistleblower protection laws in the land. The recent decision of Ross v. County of Riverside (2019) 2019 WL 2537342 further strengthens that law. by clarifying that employees need only believe that some illegal activity is happening when they report it. They do not have to expressly state that the activity violates the law in order to be protected.

Ross begins by noting that the framework for claims under Section 1102.5 is similar to the framework for other types of employment discrimination. First, an employee must show a prima facie case of retaliation. Once that burden is met, the defendant must provide a legitimate, non-retaliatory explanation for its actions. At that point, the burden shifts back to the employee to show that defendant’s explanation is merely a pretext for retaliation. See Monavian v. Department of Justice (29108) 28 Cal.App.5^th 1127, 2241.

In order to establish a prima facie case, an employee must show each of the following:

1. That the employee engaged in a protected activity;
2. That the defendant subjected the employee to an adverse employment action; and
3. That there is a causal link between the two.

Ross, decided on June 20, 2019, clarifies what an employee must show in order to prove that he or she engaged in a protected activity. In that case, Ross, a deputy district attorney who was fired, reported multiple times to his supervisor and others that the County did not have probable cause to charge a particular defendant with murder.

Although the defendant had admitted committing the crime, Ross suspected that the confession had been coerced. In order to investigate his suspicions, Ross sent critical evidence out for DNA testing. That testing revealed that the defendant had not committed the crime.

Ross concluded that the District Attorney’s office was violating the defendant’s due process rights by continuing to prosecute the case. He informed his supervisor and the assistant district attorney (ADA) about the results of the tests, and recommended dismissing the case.

[On a side note, the County engaged in some pretty scurrilous behavior with respect to the criminal case that Ross complained about. For example, the ADA told the plaintiff not to turn over the results of the DNA testing to the defendant’s attorney. Later, Ross obtained recordings of another inmate admitting to the murder at issue. In response, the ADA gave orders not to turn that evidence over the defendant’s attorney. Eventually, after more than three years, the district attorney’s office dismissed the case.]

Ross never explicitly told either his supervisor or the ADA that the County’s conduct violated the law. He merely believed it. The County seized on this issue and convinced the trial court to dismiss Ross’s Section 1102.5 claim. Ross appealed.

The Court of Appeal was left to grapple with whether Ross had engaged in protected activity within the meaning of Section 1102.5. The Court turned first to the wording of the statute.  Section 1102.5(b) provides as follows:

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

The last clause of Section 1102.5(b) is particularly important because it protects conduct that is part of an employee’s job duties. Thus, the County could not escape liability in Ross by arguing that Ross was just doing his job.

The language of Section 1102.5 further provides that a whistleblower must have “reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” In  order to meet this burden, an employee must be able to point to “some legal foundation for his suspicion-some statute, rule or regulation which may have bene violated by the conduct he disclosed.” Fitzgerald v. El Dorado County (E.D. Cal. 2015) 94 F.Supp.3d 1155, 1172.

The Court found that Ross had met this burden because he believed that the County had engaged in illegal activity. Furthermore, Ross’s belief was reasonable because it was grounded in the laws and rules that require prosecutors to avoid unethical behavior.

The Court noted that Ross had not explicitly stated that he believed that the County was violating a particular law. However, the Court held that Section 1102.5 does not require such an explicit statement. Instead, Section 1102.5 requires only that the employee believe that the information that he is disclosing discloses illegal activity.

Accordingly, the Court reversed the grant of summary judgment and returned the case to the trial court for further proceedings. Kudos to Ross and his attorneys for this victory, and we hope that he will ultimately prevail on the merits.

The attorneys at Hunter Pyle Law represent courageous employees who blow the whistle in courts throughout California. If you think that you might be a whistleblower, or have any questions about your rights in the workplace under California law, please feel free to contact Hunter Pyle Law at inquire@hunterpylelaw.com or (510) 444-4400 to make use of our free, fast, and confidential intake process.