58 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 3.4 Right to Designate Counsel Under Labor Code section 923, California employers must not discriminate against an employee for designating a representative to bargain over conditions of the employee’s employment.25 Courts have construed section 923 to empower an employee to designate an attorney to bargain with the employer with respect to conditions of employment, and to prohibit an employer from firing an employee who has made that designation.26 The Court of Appeal has held that an employer’s refusal to deal with its employee’s workers’ compensation attorney raised a triable issue as to whether the employer had failed to comply with its duty, under the FEHA, to engage in an interactive process to see if it was possible to accommodate the employee’s disability.27 Nonetheless, a California employer may still insist on dealing directly with an employee, without the presence of counsel when investigating employee misconduct or assessing employee job performance.28 3.5 Employee Whistleblowing California employers must not retaliate against employees who have—or are perceived to have—engaged in whistleblowing activities protected under Labor Code sections concerning working conditions or pay.29 3.5.1 Labor Code § 1102.5—general whistleblower statute For many years, Labor Code section 1102.5 was a straightforward whistleblower protection statute. It provided that California employers must not discipline an employee for disclosing information to a governmental or law enforcement agency with a good-faith belief that the information evidenced noncompliance with state or federal law.30 But judicial interpretation and statutory amendments have expanded the scope of this prohibition in various directions. Protected activity now includes reports (1) about violations of local as well as state and federal law, (2) that involve only co-worker or third-party wrongdoing,31 (3) regardless of whether disclosing the information is simply part of the employee’s job,32 and (4) that went to the employer rather than to the government.33 The Court of Appeal has held that a sheriff’s deputy was protected by section 1102.5 even though he was not the first employee who had reported the alleged unlawful conduct and thus was not really the one who “disclosed” it.34 Section 1102.5 also prevents employers from taking retaliatory action based upon a belief that “the employee disclosed or may disclose” protected information.35 The Court of Appeal has clarified that section 1102.5 forbids employers to terminate “perceived whistleblowers,” even if in fact the employee never reported a violation.36 And plaintiffs need not exhaust administrative remedies before suing under this statute.37 Section 1102.5 also prohibits retaliation against employees for being a family member of an employee who has, or who is perceived to have, engaged in protected activities under these provisions.38 Upon proof that the employee’s protected activity was “a contributing factor in the alleged prohibited action,” the employer must prove by “clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in [protected] activities.”39 The Ninth Circuit held that a state administrative agency’s ruling against an employee did not preclude the employee’s section 1102.5 retaliation claim in court. A county civil service commission had upheld the plaintiff’s firing, but the Ninth Circuit concluded that although administrative decisions typically have preclusive effect if they have a sufficiently “judicial character” and the elements of claim or issue preclusion are satisfied, the California Legislature intended to create “distinct fora and procedures” for retaliation claims, separate and apart from administrative procedures. The administrative decision thus did not preclude the section 1102.5 claim, even though the administrative procedure’s “sufficiently judicial character” and the plaintiff’s “adequate opportunity to litigate” meant that the administrative decision did preclude the employee’s Section 1983 claim for denial of federal constitutional rights.40
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