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Cal. Lab. Code § 1102.6, not the McDonnell Douglas test, supplies the applicable framework for litigating and adjudicating Cal. Lab. Code § 1102.5 whistleblower claims

California

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USA

The McDonnell Douglas test does not apply to Cal. Lab. Code § 1102.5 whistleblower claims In Lawson v. PPG Architectural Finishes, Inc., S266001 (S. Ct. January 27, 2022), the United States Court of Appeals for the Ninth Circuit had certified to the Supreme Court of California the question of which framework, Cal. Lab. Code § 1102.6 or the McDonnell Douglas test, governs Cal. Lab. Code § 1102.5 retaliation claims. The Supreme Court of California acknowledged that since Cal. Lab. Code § 1102.6 became law, California courts have been inconsistent in their application of it. Some courts have applied Cal. Lab. Code § 1102.6 as the evidentiary standard in Cal. Lab. Code § 1102.5 whistleblower claims, while some still relied on the McDonnell Douglas test, and others applied a combination of the two. Cal. Lab. Code § 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under Cal. Lab. Code § 1102.5 Pursuant to Cal. Lab. Code § 1102.6, the plaintiff must first demonstrate by a preponderance of the evidence that the employee’s protected whistleblowing was a contributing factor to an adverse employment action. Once the employee has made that necessary threshold showing, the employer must prove 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. There is no requirement that the plaintiff prove that the employer’s proffered legitimate reason for taking an adverse action was a pretext for impermissible retaliation Under the third step of the McDonnell Douglas test, the plaintiff is required to prove that the employer’s proffered legitimate reason for taking an adverse action was a pretext for impermissible retaliation. However, under Cal. Lab. Code § 1102.6, a plaintiff does not need to show that the employer’s non-retaliatory reason was pretextual. Even if the employer had a non-retaliatory reason for the adverse action, the plaintiff still carries the burden assigned by Cal. Lab. Code § 1102.6 if they show that the employer had one retaliatory reason that was a contributing factor to the adverse employment action. Disposition The Court clarified that Cal. Lab. Code § 1102.6, not the McDonnell Douglas test, supplies the applicable framework for litigating and adjudicating Cal. Lab. Code § 1102.5 whistleblower claims.

April 14, 2022
Lawson v. PPG Architectural Finishes, Inc., S266001 (S. Ct. January 27, 2022)
California Courts