What Happened? Before last week, some courts had applied the standard in California Labor Code section 1102.6 to resolve whistleblower claims under California Labor Code section 1102.5, while other courts had applied the traditional burden-shifting framework from McDonnell Douglas Corp. v. Green.1 On January 27, 2022, however, the California Supreme Court issued a unanimous decision in Wallen Lawson v. PPG Architectural Finishes, Inc. confirming that the arguably more employee-favorable standard in Labor Code section 1102.6, not McDonnell Douglas Corp. v. Green, applies to whistleblower claims brought under Labor Code section 1102.5.2
By way of background, Section 1102.5 provides in pertinent part, that:
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.
Section 1102.6 requires that an employee first establish, by a preponderance of the evidence, that retaliation was a contributing factor in the adverse action.3 In order to avoid liability, an employer must then demonstrate, by clear and convincing evidence, that it would have taken the same action "for legitimate independent reasons" even if the plaintiff had not engaged in the protected activity4
In contrast, under the McDonnell Douglas three-part burden-shifting framework, the employee must first establish a prima facie case of unlawful discrimination or retaliation.5 The employer then bears the burden of articulating a legitimate reason for taking the challenged adverse employment action.6 The burden then shifts back to the employee who, in order to prevail, must demonstrate that the employer's reason was a pretext for discrimination or retaliation.7
What Are the Differences in the Two Standards?
The differences relate to the burden...
