©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 59 Violation of Labor Code section 1102.5 makes the employer liable not only for damages but for a civil penalty of $10,000.41In 2020, the Legislature made section 1102.5 more potent yet by empowering successful plaintiffs to recover their attorney’s fees.42 The Legislature was not convinced by the criticism that authorizing attorney’s fees for retaliation claims would incentivize employees to choose litigation over resolution. In January 2022, in Lawson v. PPG Architectural Finishes, Inc., the California Supreme Court clarified that section 1102.5 claims are evaluated under the framework delineated in Labor Code section 1102.6, rather than under the U.S. Supreme Court’s 1973 burden-shifting framework outlined in McDonnell Douglas Corp. v. Green.43 Lawson makes it more difficult for employers to defend section 1102.5 claims. Lawson holds that the plaintiff makes out a prima facie case of liability simply by producing evidence that retaliation was a contributing factor in the employee’s termination, demotion, or other adverse action, pursuant to Labor Code section 1102.6.44 Once the plaintiff meets this burden, the burden shifts to the employer defendant to establish, by clear and convincing evidence, that it would have taken the same action “for legitimate, independent reasons.”45 Under the previously applicable McDonnell Douglas test, the ultimate burden would have been on the plaintiff “to demonstrate that the employer’s proffered legitimate reason is a pretext for discrimination or retaliation.”46 Without this final burdenshifting back to the plaintiff, the new Lawson standard puts additional pressure on the employer defendant to establish, by clear and convincing evidence, that the plaintiff was adversely affected for legitimate, independent reasons that were unrelated to the plaintiff’s whistleblowing. 3.5.2 Labor Code § 98.6—reports to Labor Commissioner California employers must not discriminate against an employee or applicant for filing a bona fide complaint relating to rights under the jurisdiction of the Labor Commissioner, for making a written or oral complaint of unpaid wages, or for initiating or testifying in a PAGA proceeding. Section 98.6’s protections extend to “the exercise by the employee or applicant … on behalf of himself, herself, or others of any rights afforded him or her.”47 A section 98.6 plaintiff is entitled to reinstatement, recovery of lost wages and benefits, and a $10,000 civil penalty.48 3.5.3 Labor Code § 1197.5(k)—reports under the Fair Pay Act California employers must not discharge or in any manner discriminate against employees who invoke or assist in the enforcement of Labor Code section 1197.5—a section that also protects employee rights to disclose their own wages, discuss the wages of others, inquire about another employee’s wages, and aid or encourage other employees to exercise rights under section 1197.5. 3.5.4 Labor Code §§ 6310-6311—safety and health reports No person may discriminate against any California employee for making any oral or written comment to government agencies with jurisdiction over employee safety or health, for instituting or testifying in any employee health or safety proceeding, or for exercising other rights relating to employee safety or health. Protected activity also includes reporting a work-related fatality, injury, or illness, requesting access to occupational injury or illness reports and records, and exercising any rights protected by the federal OSHA. California employers must not dismiss an employee for refusing to perform work in violation of occupational health or safety standards, where the violation would create a “real and apparent hazard” to an employee. 3.5.5 Government Code § 12940(h)—FEHA complaints No person may discriminate against any person for opposing a practice forbidden by FEHA or for filing a complaint, testifying, or assisting in any FEHA proceeding.
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