62 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com mutual aid or protection[.]”); 29 U.S.C. § 158(a)(1) (establishing that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.”). 21 Banner Health Sys. dba Banner Estrella Med. Ctr., 362 NLRB No. 137 (2012). This Obama Board ruling created a rare, albeit temporary, example of federal law being more hostile to employers than California law. Expect a similar ruling now that we have a Biden Board. 22 Compare Apogee Retail LLC, 368 NLRB No. 144 (Dec. 16, 2019) (employer rule requiring investigative confidentiality during investigation did not violate Section 7 of the NLRA) with Silva v. Lucky Stores, Inc., 65 Cal. App. 4th 256, 265 (1998) (employer’s investigation policy was appropriate in part because the policy ensured confidentiality). 23 Gov’t Code § 12964.5(a)(1)(B)(ii). 24 Gov’t Code § 12964.5(a)(2). 25 Lab. Code § 923. 26 Montavio v. Zamora, 7 Cal. App. 3d 69, 75 (1970) (“We believe it to be within the intent and scope of the statute, by implication, though not expressly declared, that the individual employee has the right to designate an attorney or other individual to represent him in negotiating terms and conditions of his employment, and that his discharge for so doing constitutes a violation of Labor Code, section 923.”); Gelini v. Tishgart, 77 Cal. App. 4th 219 (1999) (employer violated section 923 by firing employee because her lawyer wrote employer to request better hours and parental leave). See also Santillan v. USA Waste of California, Inc., 853 F.3d 1035, 1047 (9th Cir. 2017) (employee designating attorney to represent him in negotiating employment terms is a protected activity that supports a claim for wrongful termination in violation of public policy). 27 Claudio v. Regents of the Univ. of California, 134 Cal. App. 4th 224, 247-48 (2005). 28 TRW, Inc. v. Superior Court, 25 Cal. App. 4th 1834, 1849-52 (1994) (defense contractor could fire employee for refusing, in absence of counsel, to cooperate in investigation of possible security breaches; no Fifth Amendment right against self-incrimination applied as there was no government action and no “custodial interrogation by law enforcement”), cert. denied, 513 U.S. 1151 (1995); Robinson v. Hewlett Packard, 183 Cal. App. 3d 1108, 1130-32 (1986) (employer could fire employee for refusing to meet alone, without his lawyer, to attend performance evaluation). 29 Lab. Code §§ 98.6, 1102.5, and 6310. 30 Lab. Code § 1102.5; Holmes v. Gen. Dynamics Corp., 17 Cal. App. 4th 1418, 1432-35 (1993) (affirming jury verdict for plaintiff fired for reporting company violations of federal False Statements Act); Collier v. Superior Court (MCA, Inc.), 228 Cal. App. 3d 1117, 1124-27 (1991) (involving claim that plaintiff allegedly fired for telling upper management that other employees might be engaged in embezzlement and violations of federal antitrust laws; “[r]etaliation by an employer when an employee seeks to further this well-established public policy by responsibly reporting suspicions of illegal conduct to the employer seriously impairs the public interest, even though the employee is not coerced to participate or restrained from exercising a fundamental right.”). 31 McVeigh v. Recology San Francisco, 213 Cal. App. 4th 443, 471 (2013) (section 1102.5 “protects employee reports of unlawful activity by third parties such as contractors and employees, as well unlawful activity by an employer.”). 32 Id. at 469 (“An employee’s report of illegal activity can … constitute protected conduct under [section 1102.5(b)] even if she ‘was simply doing her job’ in making the report.”). 33 Lab. Code § 1102.5(a), (b) (law protects not only reports to “a government or law enforcement agency,” but also reports “to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance”). 34 Hager v. Cnty. of Los Angeles, 228 Cal. App. 4th 1538, 1541, 1548 (2014) (rejecting defendant’s argument that plaintiff did not “disclose information” where suspicions of unlawful conduct had already been reported by others), disapproved on other grounds by Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703, 711 (2022). 35 Lab. Code § 1102.5(b). 36 Diego v. Pilgrim United Church of Christ, 231 Cal. App. 4th 913 (2014) (teacher allegedly fired because the preschool director mistakenly believed she had complained to the Community Care Licensing Division of the California Department of Social Services, resulting in an unannounced inspection of the preschool). 37 See Lab. Code § 244(a) (plaintiffs need not exhaust administrative remedies or procedures to sue under a Labor Code section, unless the section expressly requires exhaustion—and section 1102.5 does not). 38 Lab. Code §§ 98.6(e), 1102.5(h), and 6310(c). 39 Lab. Code § 1102.6. 40 Bahra v. Cnty. of San Bernardino, 945 F.3d 1231, 1236 (9th Cir. 2019) (California law meant the civil service commission’s decision did not preclude the section 1102.5 claim, while under federal law the plaintiff’s “full opportunity to litigate the propriety of his termination before the administrative agency” meant that the commission’s decision did preclude the Section 1983 claim). 41 Lab. Code § 1102.5(f). 42 AB 1947, 2020 bill amending Lab. Code § 1102.5. Section 1102.5(j) now reads: “The court is authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions.” 43 Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703, 707 (2022) (“Unsurprisingly, we conclude courts should apply the framework prescribed by statute in Labor Code section 1102.6. Under the statute, employees need not satisfy the McDonnell Douglas test to make a case of unlawful retaliation.”); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 44 Lawson, 12 Cal. 5th at 712 (“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.”) (citing Lab. Code § 1102.6).
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