New life for whistleblower-retaliation claims

[This article by Bryan Schwartz and Cassidy Clark appeared first in the April 2022 edition of Plaintiff magazine.] 

Lawson and not McDonnell Douglas now provides the framework for litigating section 1102.5 whistleblower claims

California continues to affirm its commitment to employees who blow the whistle on their employers’ unlawful practices. Plaintiffs’ lawyers should take note. Favorable recent developments in California whistleblower retaliation law mean we should all be looking for potential Labor Code section 1102.5 and other whistleblower retaliation claims. 

The California Supreme Court, in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, explained that the evidentiary standard to establish liability in whistleblower cases is different, and lower, than the McDonnell Douglas burden-shifting framework typically utilized in discrimination cases. Under McDonnell Douglas, the ultimate burden is on the employee – but not so, for whistleblowers.

Whistleblowing employees force a heavy burden onto their employers after demonstrating that protected activity was a contributing factor in an adverse action. Paired with the legislature’s clarification that attorneys’ fees are available in whistleblower cases, codified in Labor Code section 1102.5, subdivision (j), Lawson reaffirms the state’s public policy interest in encouraging workplace whistleblowers to report unlawful acts without fearing retaliation.

Now, whistleblowers are stepping forward like never before, with a new awareness of health and safety in the wake of COVID, and social media increasingly available as a forum for raising concerns. Daily, whistleblowers impact global events, both with the war abroad, and at home, including at some of the biggest employers, from tech giants like Facebook to the federal government.

As plaintiffs’ lawyers, we are in the auspicious position to support whistleblowers and protect the public from employers’ harmful violations of the laws meant to protect us all.

California’s evolving statutory whistleblower protections

Many statutes protect California whistleblowers. For example, employees are specifically protected from retaliation for asserting their rights under FEHA (Gov. Code, § 12940, et seq.), filing a wage claim with the Labor Commissioner (Lab. Code, § 98.6), discussing working conditions (Lab. Code, § 232.5), complaining about workplace health and safety issues (Lab. Code, § 6310), using sick leave (Lab. Code, § 246.5), taking time off work for jury duty (Lab. Code, § 230, subd. (a)), among many other additional protected activities.

However, the most sweeping California whistleblower protection is Labor Code section 1102.5, enacted in 1984, which prohibits an employer from retaliating against an employee for disclosing information the employee reasonably believes violates the law. The protected disclosure may be to a government agency, a person with authority over the employee, or another employee who has authority to investigate or correct the violation. Under section 1102.5, an employee is also protected for refusing to participate in an unlawful practice. (Section 1102.5, subds. (b-c).) In California, “our Legislature believes that fundamental public policies embodied in regulations are sufficiently important to justify encouraging employees to challenge employers who ignore those policies.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.)

In 2003, in response to “a series of high-profile corporate scandals and reports of illicit coverups,” the legislature passed amendments to expand the Labor Code’s whistleblower protections. (Lawson, 12 Cal.5th at 710 (citing Assem. Com. on Judiciary, Analysis of Sen. Bill No. 777 (2003-2004 Reg. Sess.)).) These amendments included the addition of a procedural provision, section 1102.6. This section requires only that an employee show protected activity was a “contributing factor” under section 1102.5, by a preponderance of the evidence, before an employer must prove by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons, apart from protected activities. With the addition of section 1102.6, the McDonnell Douglas burden-shifting framework was abandoned in whistleblower retaliation cases, according to Lawson. (12 Cal.5th at 709-710.)

What changed with Lawson?

After section 1102.6 became law, some California courts adopted it as a new evidentiary standard for whistleblower retaliation claims. (Lawson, 12 Cal.5th at 711.) But some courts continued to use the McDonnell Douglas standard, giving short shrift to section 1102.6. (Ibid.) Courts applying McDonnell Douglas to section 1102.5 adapted it to the whistleblower retaliation framework as follows:

First, a plaintiff was required to establish a prima facie case of retaliation by showing that she engaged in a protected activity, that she was subjected to an adverse employment action, and that there was a causal link between the two. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69). Second, the burden shifted to the employer to put forth evidence of a legitimate, nonretaliatory reason for the adverse employment action. (Id. at 68.) And third, the burden shifted back to the employee to prove the reason was pretext for impermissible retaliation. (Id. at 68-69; see also Lawson, 12 Cal.5th at 710.) The Lawson plaintiff ’s case was dismissed by the U.S. District Court on summary judgment, ostensibly because he failed to prove pretext, under this third element. He appealed.

On appeal, in 2020, the Ninth Circuit noted that California appellate courts conflicted on which evidentiary standard to apply, the McDonnell Douglas framework or that outlined in 1102.6, and certified a question to the California Supreme Court to clarify this issue (Lawson v. PPG Architectural Finishes (9th Cir. 2020) 982 F.3d 752.)

Lawson clarifies that section 1102.6, and not McDonnell Douglas, “supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims.” (12 Cal.5th at 712.) Lawson expressly disapproves state court cases relying on McDonnell Douglas-type burden shifting, including Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538, Mokler v. County of Orange (2007) 157 Cal.App.4th 121, and Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378.

How Lawson’s reading of section 1102.6 helps plaintiffs

Once an employee shows that the whistleblowing was a “contributing factor” to an adverse employment action, the burden shifts to the employer to demonstrate by clear and convincing evidence” that the alleged adverse employment action would have occurred “for legitimate, independent reasons” even if the employee had not engaged in protected whistleblowing activities. (Lawson, 12 Cal.5th at 712.) This means that the ultimate burden of proof under section 1102.6 lies with the employer to prove, convincingly, that the adverse action would have occurred without the whistleblowing activity.

The ultimate burden of proof in discrimination cases under McDonnell Douglas, to show pretext, is a heavy lift for many plaintiffs – as it was for the plaintiff in Lawson at the trial court. The Supreme Court in Lawson explains that even if the employer has a “genuine, nonretaliatory reason for its adverse action,” all a plaintiff has to do is show that the employer “also had at least one retaliatory reason that was a contributing factor in the action.” (Lawson, 12 Cal.5th at 715-16.) This recognizes the reality that unlawful whistleblower retaliation is often one of multiple reasons that employers can identify for their adverse actions.

The 1102.6 evidentiary standard is not focused on finding the one, “true” reason for the adverse action, as is the McDonnell Douglas framework. (Id. at 714.) Section 1102.6 recognizes the complexity of “mixed motive” cases, wherein employers may make decisions on the basis of both lawful and unlawful considerations. (Ibid.) Lawson says that section 1102.6 does not merely codify the “same-decision defense” under Harris v. City of Santa Monica (2013) 56 Cal.4th 203 in a whistleblower case – section 1102.6 provides the entire applicable framework for litigating and adjudicating section 1102.5 claims. (Lawson, 12 Cal.5th at 712.)

Some courts that referenced the section 1102.6 framework prior to Lawson applied a prima facie test akin to that from McDonnell Douglas as just the first step of their analysis. (See, e.g., Greer v. Lockheed Martin Corp. (N.D. Cal. 2012) 855 F.Supp.2d 979, 988.) Greer equates the first step of the section 1102.6 framework (a plaintiff must demonstrate, by a preponderance of the evidence, that the employee’s whistleblowing was a contributing factor to an adverse employment action) with the McDonnell Douglas framework: (1) the plaintiff engaged in a protected activity; (2) the plaintiff was subjected to an adverse employment action; and (3) there is a causal link between the two. (Greer, 855 F.Supp.2d at 988.) The Supreme Court in Lawson described Greer as one of the decisions in federal courts that showed “widespread confusion” about the evidentiary standards. Lawson brings clarity, holding that section 1102.6 allows plaintiffs to establish liability under section 1102.5 without reliance on McDonnell Douglas. (Lawson, 12 Cal.5th at 717.)

Assessing potential section 1102.5 claims

When assessing a potential 1102.5 claim, we should be prepared to address some of the considerations unaltered by Lawson. We should always investigate: whether the employee’s belief that an activity was unlawful was reasonable; whether the employee disclosed the unlawful activity externally to a government entity, or internally to someone with authority over the employee or the power to investigate or rectify the violation; and, whether an adverse action occurred after the disclosure, setting up an allegation that the disclosure was a contributing factor in what occurred.

Recall that section 1102.5 protects not just those who report violations of law, but also employees who are perceived by employers to have engaged in whistleblowing activity even if they did not do so (subsection 1102.5(b)), employees who testify before a public body about a practice they reasonably believe is unlawful (subsection 1102.5(a)), employees who refuse to participate in activities they reasonably believe are unlawful (subsection 1102.5(c)), and family members of individuals who engage in activities protected by the statute (subsection 1102.5(h)).

The one-two punch of sections 1102.5 and 1102.6 is intended to encourage employees to come forward about the legal violations of their employers without fear of retaliation. We can deploy these statutes not only to protect employees, but to help rectify the many underlying concerns that whistleblowers are raising.

Section 1102.5 fees

Beyond Lawson, the relatively recent addition of subsection 1102.5(j) makes clear that courts should award reasonable attorneys’ fees to a plaintiff who brings a successful action for whistleblower retaliation under section 1102.5, but not to a defendant who defeats whistleblower claims. Previously, if plaintiffs’ attorneys wanted to seek fees for whistleblowers, they had to do so under the California Labor Code Private Attorneys’ General Act (PAGA), or another statute.

Conclusion

Given the explosion of whistleblowing activity, coupled with new pro-whistleblower developments in California, plaintiffs and their lawyers are in a better position than ever to pursue whistleblower retaliation claims.

The Future of Workers’ Rights

On April 1, 2022, workers voted convincingly to form a labor union at Amazon’s facility in Staten Island, New York. Amazon’s fight against unionization met its match, defeated not by well-funded external labor unions, but by a low-budget, independent group, the Amazon Labor Union (ALU). The ALU spent $120,000 on the campaign, raised through GoFundMe, defeating the trillion+-dollar Amazon empire’s push to suppress worker organizing. The company spent $4.3 million in 2021 alone on anti-union consultants to help keep its 1.1 million workers disorganized and disempowered.

The workers voted 2,654 to 2,131 in favor of creating the ALU, the first-ever Amazon union. The darkhorse victory grew out of the determination, courage and conviction demonstrated by Christian Smalls and Derrick Palmer, who had worked at the facility, and whose authenticity resonated during the 11-month-long union campaign. In the spring of 2020, after learning organizing efforts were underway in their New York City warehouses, Amazon launched a smear campaign against the organizing lead, Smalls. Amazon General Counsel David Zapolsky questioned Small’s street-casual demeanor and called him “not smart, or articulate” – unfounded stereotypes which reveal thinly-veiled racism exhibited by the Amazon executive team. Amazon attempted to silence Smalls by firing him in 2020 after he led a walkout to protest COVID-related health and safety issues.

The termination sparked something in Smalls, and he and his partner, Derrick Palmer, began their union campaign in earnest in early 2021. Concurrently, Amazon ran two major campaigns against unionizing efforts in Alabama and New York City. Amazon paid anti-union consultants $3,200 per day, each, to host mandatory meetings for captive audiences of employees, and one-on-one meetings with workers to turn them against the union organizing efforts. The mandatory meetings were typically led by Amazon managers who delivered scripted anti-union speeches and slideshows, but the efforts backfired, when contrasted with Smalls’ grassroots approach.

Smalls organized workers by waiting at a Staten Island MTA bus stop that brings workers to and from the LDJ5 Amazon sorting center and the JFK8 fulfillment center. Smalls would wait at the MTA bus stop for hours at a time, days on end – even after being arrested and accused of trespassing and resisting arrest on Amazon property. The bus stop outside the warehouse became a place of refuge for workers to enjoy Palmer’s homemade baked ziti, empanadas, and West African rice dishes alongside a makeshift bonfire to warm colleagues waiting for the bus in the cold. Meantime, Smalls and his team used unconventional organizing methods such as Twitter and TikTok to raise money, recruit legal representation, and gain supporters.

The momentous victory of the ALU is especially important in the light of the drastic decline in union membership in the U.S., which fell from 20% in 1983 to 10.3% in 2021. Early unions’ intentions were to raise wages obtain basic worker protections, and level the playing field. In fact, many of today’s employment laws would not exist had workers not unionized. However, despite these great ideals, anti-union campaigns and the unfortunate reproduction of bias within some unions have been barriers to progress. Gradually, as unions became more institutionalized, many workers began to feel suspicious of them. Amazon warehouse workers in Staten Island, the majority of whom are young, Black, Latino, working class and urban, may not have felt that established unions spoke for them.

Smalls, a 33-year-old Black man operating independently, and his ALU, stepped into this void. When asked about traditional unions, Smalls said he felt that established unions were “disconnected” from innovative styles of organizing. To emphasize his point, Smalls camped out at the MTA bus stop for 10 months as union president. The ALU’s innovative use of scrappy resources such as social media, the MTA bus stop, and makeshift advertisements made with tape and cardboard, may be revealing a new era in workers’ rights. In the envisioned new era, leadership takes nontraditional forms, where union presidents come from diverse backgrounds and socioeconomic statuses, and organizing methods are no longer restricted to well-staffed offices and dues-financed operations. Smalls, with his collection of tattoos, gold grills, and former career as a rap singer, may be the future of labor unions in America, an outsider to mainstream power structures driven only by his passion to make people’s working conditions better. 

Undoubtedly, advocating for your rights in the workplace is a terrifying endeavor, especially against a giant like Amazon, but by harnessing the strength of community, Smalls was not alone. What Smalls and his team have shown is that this source of strength, plus some clever grassroots labor organizing, can fell giants.

Bryan Schwartz Law stands unwaveringly with workers in advocating for their rights. When such rights are violated, Bryan Schwartz Law will empower workers to fight back. If you feel that your employer has compromised your rights in the workplace, including your right to concerted action with your co-workers, reach out to us here.