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Article Summary

California boasts one of the nation’s strongest state whistleblower laws in the form of section 1102.5 of the state’s Labor Code. This statute breaks from most state whistleblower protection laws by covering private sector employees for a range of whistleblowing activities. The impressive scope and the Legislature’s readiness to improve the law makes California’s whistleblower statute a model for states seeking to strengthen whistleblower protections.

This article by TELG principal David L. Scher and TELG managing principal R. Scott Oswald was published by California Lawyer on September 16, 2016. The full article is .

Excerpted from:

Whistling for the Win in California Labor Code Section 1102.5

California boasts one of the nation’s strongest state whistleblower laws in the form of section 1102.5 of the state’s Labor Code. This statute breaks from most state whistleblower protection laws by covering private sector employees for a range of whistleblowing activities. The impressive scope and the Legislature’s readiness to improve the law makes California’s whistleblower statute a model for states seeking to strengthen whistleblower protections.

SCOPE OF THE WHISTLEBLOWER LAW
At its core, a whistleblower retaliation case requires three elements:

• protected whistleblowing activity by the plaintiff;
• an adverse action against that plaintiff by the employer,
• and some indication that the whistleblowing was the reason for the adverse employment action.

Section 1102.5 stakes out positions favorable to whistleblowers on all three aspects of the prima facie case, as well as with respect to the employer’s defense.

PROTECTED ACTIVITY
The language for protected activity is broad where necessary, while using precision to be sure certain types of whistleblowers do not fall through the cracks or get swept into common loopholes of other whistleblower laws.

To begin with, the law repeatedly uses the phrase “an employer, or any person acting on behalf of the employer, shall not…” This is self-evidently broad, clearly roping in private-sector employers. This particular inclusion puts California’s whistleblower statute ahead of nearly every other state in terms of scope.

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