In a unanimous opinion, the California Supreme Court ruled that State and federal judges have been applying the wrong legal test to whistleblower employee claims. Stephen Noel Ilg, owner of ILG Legal Office, PC and a Professor of Law, authored an article on the topic which was published in the Los Angeles and San Francisco Daily Journal. The article is available online at the following link: DailyJournal. Our firm congratulates Ilg on this published article. We have received great feedback including compliments from mediators and a retired California Appellate Court justice.
The crux of the ruling in Lawson v. PPG Architectural Finishes, Inc., 2022 DJDAR 967 No. S266001, 2022 WL 244731 (Cal. Jan. 27, 2022) is that whistleblower employees never need to prove that the employer’s stated reason for termination is a sham, which is generally referred to as “pretext.” For decades, State and federal courts have required whistleblower employees to prove their employer is lying even though the California statute on the issue clearly states that the claim is governed by a different test.
By its terms, Labor Code section 1102.6 describes the applicable substantive standards and burdens of proof for both parties in a Section 1102.5 retaliation case: First, it must be “demonstrated by a preponderance of the evidence” that the employee’s protected whistleblowing was a “contributing factor” to an adverse employment action. Then, once the employee has made that necessary threshold showing, the employer bears “the burden of proof 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.
The attorneys at ILG Legal Office, PC are on the cutting edge of legal developments. We thank the Los Angeles and San Francisco Daily Journal for showcasing an article by a member of our team. The full link to the article is: https://www.dailyjournal.com/articles/365880-ruling-ends-decades-of-improper-whistleblower-burden-shifting.