California Labor Code section 1102.5 authorizes employees to recover attorneys’ fees if they bring a successful action. However, the employer may preclude an award of attorney’s fees to the employee by establishing the same-decision affirmative defense outlined in Labor Code section 1102.6.
Background on California Labor Code Section 1102.5 Whistleblower Retaliation ClaimsOn July 8, 2025, California’s Second District Court of Appeals reversed a trial court’s decision awarding attorneys’ fees to an employee alleging whistleblower retaliation under Labor Code section 1102.5. The Court of Appeals explained that there is no discretion provided to courts in awarding attorneys’ fees under Labor Code section 1102.5 – meaning, if an employer successfully establishes the same-decision affirmative defense scheme in section 1102.6, the employee has not brought a “successful action” that would warrant an award of attorneys’ fees.
In 2017, Lampkin, a former deputy at the Los Angeles Sheriff’s department, filed a single cause of action for whistleblower retaliation under Labor Code section 1102.5 against the county. Lampkin requested monetary damages, but no injunctive or declaratory relief. At trial, the jury found that although Lampkin established that he had engaged in protected activity, the county also met its burden that it would have made the same decision for independent, legitimate reasons. Considering this, the jury did not award Lampkin damages. Lampkin requested the trial court declare him the prevailing party, relying on Harris v. City of Santa Monica (2022) 79 Cal.App.5th 367, which holds that the same-decision defense does not bar a fee award on claims brought under the Fair Employment and Housing Act (FEHA)...
