Not all instances of workplace revenge are unlawful under California employment law. California only prohibits retaliation in the workplace when the employee engages in what is called “protected activity.” While multiple different laws prohibit specific forms of retaliation at work, the most commonly used law is Labor Code section 1102.5 (b). This article discusses the most important parts of this powerful law.
What is protected activity?
In order to have a case for unlawful retaliation, the employee must be able to show that he or she engaged in what is called “protected activity.” Protected activity most commonly includes when the employee makes a good faith complaint, report, or disclosure that something unlawful is happening at the workplace. If made internally, that good faith complaint, report, or disclosure must be made to a manager, owner, boss, or other “person with authority over the employee.” (Lab. Code § 1102.5(b).) If made externally, a protected complaint must be made to an external government agency that has authority over the employer, such as OSHA. If an external complaint is made, the employer must still be on notice that it was the employee who made the complaint. A truly anonymous complaint, not attributable to a specific employee, would not suffice for unlawful retaliation.
Importantly, Labor Code section 1102.5 only requires that the employee have “reasonable cause to believe” that something at work is unlawful. (California Civil Jury Instructions (2025) No. 4603.) In other words, the employee merely has to have a good faith belief that the employer is violating the law. The employee does not need to be legally correct in his or her legal conclusions to have protection from unlawful retaliation; suspected violations are sufficient. (People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 721.)
That said, the underlying conduct or action complained of in good faith, if correct, must in-fact violate the law. Many common workplace complaints do not complain of unlawful conduct and therefore cannot constitute protected activity. These can include complaints about a boss’s personality, workplace bullying, nepotism, yelling and swearing, that the employee has been given the cold shoulder, or that the employee is given an unequal workload or unrealistic performance expectations. Similarly, complaints about unwise policies or business decisions, wasteful or lazy conduct, or incompetency are usually not protected. (Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 854.) In other words, complaints about highly unpleasant and unfair interpersonal behavior or personality conflict often do not rise to the level of illegality.
Conversely, some of the most common bases for protected activity can include complaints of a failure to accommodate, that the unlawful discrimination is occurring, workplace safety issues, dangerous working conditions, harassment, that the employee has dangerous co-workers, and the non-payment of wages or overtime.
What types of adverse employment action must be shown?
If the employee has shown that he or she has engaged in legally protected activity, the employee must also show that he or she experienced “adverse employment action” in response to that complaint. The employee must prove this by a more likely than not or “preponderance of the evidence” standard. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 707.)
Adverse employment action most commonly includes outright termination or firing of the employee. It may also include “constructive terminations” where working conditions are so intolerable that the employee has no realistic choice but to quit. Adverse employment action may also include suspensions, write-ups, and other forms of workplace discipline.
Employees of public school districts often face more subtle adverse employment actions that occur over an extended period of time of months or years. This includes school districts local to Santa Cruz County including the Pajaro Valley Unified School District and Santa Cruz City Schools. This can include the sudden switching of classroom assignments, the changing of school sites, being assigned the most difficult students, the non-renewal of a contract, or the employee’s placement on the district’s 39-Month Re-Employment List. This is done by the human resources departments for government schools in an effort to better disguise unlawful retaliatory motives.
Moreover, the employee must merely show that the plaintiff’s protected activity was a “contributing factor” of the adverse employment action. This means that the adverse employment action is still unlawfully retaliatory even if the employer had a mix of unlawful and legitimately legal reasons to terminate the employee. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 714.) For example, if an employee is fired because he or she was occasionally tardy, but also because the employee submitted a complaint about unlawful working conditions, the termination is still illegal.
When does the burden shift to the employer?
Once an employee-whistleblower establishes by a preponderance of the evidence that retaliation was a contributing factor in the employee's termination or other adverse action, the employer bears the burden of demonstrating by “clear and convincing evidence” that it would have taken the same action for legitimate, independent reasons. (Labor Code § 1102.6; Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 707.) In other words, it then falls to the employer to show the employee would have been fired anyways even if the protected activity had never occurred. (Labor Code § 1102.6.)
“Clear and convincing evidence” is a higher standard of proof than a preponderance of the evidence but lower than the criminal standard of beyond a reasonable doubt. Clear and convincing evidence requires that it is “highly probable that the fact is true” and that “facts are so clear that it leaves no substantial doubt.” (Butte Fire Cases (2018) 24 Cal. App. 5th 1150, 1158.)
Simply put, the employer must present a very strong case in order to rebut the Plaintiff-employee's claim of retaliation and show persuasively that retaliation had nothing at all to do with the termination.
What damages can a prevailing employee recover?
If the employee prevails in his or her underlying retaliation case, the employee can recover economic damages, meaning the amount of money the employee would have earned had they not been retaliated against, such as lost salary, wages, benefits, and retirement service credits. The employee may also recover non-economic damages, or human impact damages for humiliation, anger, depression, fear, inconvenience, and embarrassment. Non-economic damages can be many times larger than the underlying economic damages and are not dependent on the employee being a high or low salary earner.
If the employee can show that the employer acted maliciously by clear and convincing evidence, the employee may also recover punitive or exemplary damages. Punitive damages are intended to punish and make an example of the retaliating employer. Punitive damages can be multiple times larger than the employee’s combined economic and non-economic damages. Unfortunately, punitive damages cannot be sought against a government-employer.
Lastly, a prevailing employee may also recover his or her attorneys’ fees. Although whistleblower retaliation cases are almost always brought on a contingent basis and attorney fees are not paid by the employee herself, the employer is still liable for the value of the attorney’s time. Because even straightforward whistleblower cases can be litigated for years, attorneys can easily spend hundreds of hours on a single case. Larger whistleblower cases can have attorney fee awards of multiple millions of dollars.
What are some common traps for the unwary employee?
If you are currently experiencing whistleblower retaliation or are on the cusp of making a protected complaint, there are several important traps for the unwary to be cognizant of.
First, as discussed above, only complaints about conduct that is unlawful or is believed in good faith to be unlawful are legally protected. Complaints about poor relations with co-workers, inefficient work processes and the like are not typically protected. Employees should understand that retaliation in response to unprotected complaints is legal and will not give the employee legal recourse.
Second, for employees of government employers, including public school districts, a very short six-month deadline, or “statute of limitation”, will typically apply. Within six months of any retaliation the employee will be required to submit a legally compliant “government tort claim” with the underlying employer. Because government tort claims are technical in nature and are designed to thwart legal claims against the government, it is always recommended that an attorney experienced in employment law prepare and submit the government tort claim. Because locating experienced employment law counsel can take time, an employee facing retaliation at work should not delay in contacting an attorney.
Third, employees should always submit any underlying complaints or grievances in writing, preferably by email. This is so that the employee can prove that a complaint was communicated, that it was protected in nature, and that the employer received it. While verbal complaints are protected just as much as written ones, employers and their attorneys will deny that an oral complaint was made and/or dispute the content of what was orally communicated. If employees do make a verbal or in-person complaint, this should be followed up by a shorter email confirming what was said.
Are you facing retaliation in the workplace? Contact the Law Office of Brian Mathias today.