Counter-arguments for common whistleblower retaliation defenses under Labor Code 1102.5
Under Labor Code 1102.6, you only need to show your protected activity was a "contributing factor" to the adverse action. Then the burden shifts to the employer to prove BY CLEAR AND CONVINCING EVIDENCE that they would have taken the same action regardless. This is a high burden for employers to meet.
Employer claims your report wasn't protected because what you complained about wasn't actually illegal, or you were wrong about the law.
"Labor Code section 1102.5(b) protects employees who disclose information where they have 'reasonable cause to believe' there is a violation. Under Mize-Kurzman, an employee need not be correct about the legality - only that they reasonably believed there was a violation. I had reasonable cause to believe [conduct] violated [law/regulation] based on [specific facts]. Whether a court ultimately finds an actual violation is irrelevant to my retaliation claim."
Employer claims the adverse action was based on legitimate performance problems, attendance issues, or other misconduct - not your whistleblowing.
Unlike typical employment cases where you must disprove the employer's reason, under LC 1102.6 the EMPLOYER must prove by clear and convincing evidence that they would have taken the same action regardless of your whistleblowing. This is a significantly higher burden.
"Under Labor Code 1102.6, [Employer] bears the burden of proving by clear and convincing evidence that they would have terminated me regardless of my protected disclosure. They cannot meet this burden. Before my disclosure on [date], I had [years] of positive performance reviews and no discipline. Within [days/weeks] of my report, I suddenly received [discipline]. This temporal proximity, combined with my prior clean record, establishes that retaliation was a contributing factor. [Employer] cannot prove with clear and convincing evidence that they would have acted identically absent my whistleblowing."
Employer claims your disclosure wasn't protected because you didn't report to a government agency - only to internal management, HR, or a supervisor.
"Labor Code 1102.5(b) explicitly protects disclosures to 'a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation.' My report to [name/position] qualifies because [he/she] had authority to [investigate/correct] the violation. The statute does not require employees to bypass internal channels and go directly to government agencies. My internal report is fully protected."
Employer claims the person who made the adverse decision had no knowledge of your whistleblowing, so there couldn't have been retaliation.
"Under the 'cat's paw' theory recognized in Reeves v. Safeway, an employer is liable when a supervisor who knew of my protected activity influenced the decision-maker. [Supervisor who knew] recommended my termination/provided negative input that drove the decision. Additionally, knowledge can be inferred: [Employer] is a [size] company where my report was widely discussed. The claim that [decision-maker] was unaware is not credible given [specific facts]."
Employer argues that too much time elapsed between your disclosure and the adverse action to support causation (no "temporal proximity").
"While temporal proximity is one form of evidence, it is not required. Here, a clear pattern connects my disclosure to my termination: [describe escalation of hostility, negative reviews, increased scrutiny, etc.]. The delay occurred because employer was building a paper trail to justify retaliation. Under the 'contributing factor' standard of LC 1102.6, I need only show my disclosure contributed to the decision - not that it was the sole or primary cause. The totality of evidence supports causation."
Employer claims your disclosure wasn't "whistleblowing" because it was part of your normal job duties - you were required to report such issues.
"California Labor Code section 1102.5(b) explicitly protects disclosures made 'regardless of whether disclosing the information is part of the employee's job duties.' The Legislature added this language in 2013 specifically to reject the federal Garcetti doctrine. My report is protected whether or not it was part of my job responsibilities. [Employer] cannot use my job duties against me under California law."
Employer attacks your credibility, claiming you're just a bitter former employee inventing a whistleblower claim to get back at them.
"My personal feelings about [Employer] are irrelevant to whether my disclosure is protected. Labor Code 1102.5 protects disclosures based on their content, not the reporter's motivation. I made my disclosure on [date], before any conflict arose. The disclosure is documented in [evidence]. Whether I am 'disgruntled' does not change the legal analysis: I made a protected disclosure, and retaliation followed."
Employer claims your whistleblower claim must go to arbitration rather than court or the Labor Commissioner.
"My right to file a complaint with the Labor Commissioner cannot be waived by any private agreement. Additionally, the arbitration agreement is unconscionable because [procedural: no negotiation, hidden terms, take-it-or-leave-it] [substantive: limited discovery, fee-splitting, unfair venue]. Even if some claims must be arbitrated, I retain the right to pursue administrative remedies for my whistleblower claim."
Employer claims you waited too long to file your claim and the statute of limitations has expired.
"My claim is timely. California Labor Code 1102.5 claims have a 3-year statute of limitations. My claim was filed within 3 years of the adverse action on [date]. [Alternatively]: Under the continuing violation doctrine, the ongoing pattern of retaliation brings earlier acts within the limitations period. [Or]: The discovery rule tolls the deadline because I did not discover the retaliatory nature of the action until [date]."
Employer claims that even if you did engage in protected activity, they would have taken the same adverse action based on legitimate reasons.
This is not "more likely than not" (preponderance). Clear and convincing evidence requires the employer to show their legitimate reason is highly probable - leaving no substantial doubt. Courts should view this burden strictly.
"[Employer] cannot meet its burden of proving by clear and convincing evidence that it would have taken the same action regardless of my protected disclosure. The 'clear and convincing' standard requires proof that leaves no substantial doubt. Here, [describe evidence of pretext: timing, shifting reasons, inconsistent treatment]. At best, [Employer] offers disputed evidence that might support a preponderance standard - but that is insufficient under LC 1102.6."
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