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Wrongful termination of whistleblowers - Labor Code § 1102.5

When an employee feels he has been wrongfully terminated by his employer as a whistleblower, one of his most important protections comes from California Labor Code Section 1102.5. California's "whistleblower" statute was designed to encourage workers to report unlawful acts without fear of retaliation. When an employee makes a good faith disclosure of a violation of federal or state law he should be able to disclose it without fearing reprisal. But just because a retaliated against employee made such a disclosure doesn't necessarily mean he will have a successful case. In order to understand what makes a claim successful, one should look at the method by which courts analyze whistleblower cases.

First, an employee must be able to make what is known as a "prima facie" case of retaliation. This is done by establishing that the individual engaged in a protected activity and was subjected by his or her employer to an adverse employment action, and then showing the existence of a causal link between the protected activity and the adverse employment action. In order for the disclosure to be considered a protected activity there must be reasonably based suspicions of illegal activity. An adverse employment action does not necessarily need to be a termination as long as it materially affects the terms and conditions of employment. So if, for example, after an employee discloses to his superior his reasonable belief that their company is breaking the law, the employer responds by demoting the employee - this may be sufficient to satisfy the adverse employment action prong. Often, to show the link between the protected activity and the retaliation, it is necessary to rely on circumstantial evidence. Employer knowledge and proximity between the protected activity and the retaliation may be sufficient.

Second, once the prima facie case has been made, the burden of proof shifts to the employer to show a legitimate, non-retaliatory reason for the adverse employment action. If the employer is able to do this the court will move on to the final phase of the burden shifting analysis. Here, the employee must prove that the reason given for the adverse employment action was merely a pretext for retaliation. In other words, the employee must show that either the retaliatory reason was more likely the employer's motivation or that the employer's explanation is unworthy of being believed. Again, this phase may rely heavily on circumstantial evidence because it will likely involve subjective matters that only an employer can know. The central issue for the judge or jury to determine is whether or not the evidence as a whole supports a reasonable conclusion that the adverse employment action had a retaliatory motivation.

This brief description provides a basic understanding of what courts look for in cases brought under Labor Code 1102.5, but it is just an overview. Each case is unique and there are many areas and issues that need to be explored in depth. At The Rutten Law Firm, APC we have successfully represented individuals in retaliation cases. We are strong advocates for employees who wish to enforce their legal rights. If you feel you have been the target of retaliation by your employer for engaging in a protected activity, it is important that you contact an attorney immediately in order to ensure that your rights and potential remedies are protected. Many corporations and employers have vast resources and powerful interests - you need to ensure that you are adequately represented as well.

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