Courts Clarify California Whistleblower Law

Earlier this month, the Court of Appeal and the California Supreme Court provided helpful guidance on whistleblower retaliation cases. The Court of Appeal addressed who is a prevailing party entitled to fee and cost recovery under Labor Code section 1102.5 et seq., California’s whistleblower retaliation law. The California Supreme Court clarified who is an employee entitled to whistleblower protection under the statute.

“Same-Decision” Defense Under Whistleblower Statute

Section 1102.5, in part, prohibits retaliation by employers against an employee:

for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. 

This section provides that “the court is authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of the [whistleblower retaliation law].” 

On July 8, 2025, the Second Appellate Division of the Court of Appeal clarified who is a “prevailing party” for purposes of fee and cost recovery in a claim brought under Section 1102.5. It held that an employer can avoid an award of fees by establishing a “same-decision defense,” which deprives the plaintiff of prevailing party status. This defense, set forth in Section 1102.6, requires that the employer demonstrate it would have taken the same action for “legitimate, independent reasons” even if the employee had not engaged in protected whistleblowing activity. 

Lampkin v. County of Los Angeles

In Lampkin v. County of Los Angeles, the plaintiff alleged a single cause of action for whistleblower retaliation against Los Angeles County. The plaintiff, a deputy with the LA County Sheriff’s Department (LASD), stopped a man on suspicion of soliciting a prostitute. The man turned out to be a retired deputy sheriff who was having lunch in his car with his girlfriend. The plaintiff and the suspect provided different versions of the stop. The plaintiff said the suspect threatened him based on the suspect’s connections with LASD. The suspect claimed that the plaintiff threatened him and made a crude, sexual remark in front of the suspect’s girlfriend.

The plaintiff reported the interaction to his supervisor; the suspect complained to LASD about the stop. The plaintiff asserted that the suspect’s friends then instigated various retaliatory actions against the plaintiff, including a suspension, a search of his residence, and termination of medical benefits. The plaintiff sued for monetary damages and “such other relief as the court may deem just and proper.” 

After trial, a jury returned a special verdict on February 10, 2023.  The jury found the plaintiff had engaged in activity protected by Section 1102.5 and that the activity was a contributing factor in LASD’s actions against him. The jury also found, however, that LASD would have made the same decisions about plaintiff regardless of the retaliation, for independent and legitimate reasons. The jury therefore awarded no damages to plaintiff.

The plaintiff filed a motion for an order declaring him the prevailing party, relying on Harris v City of Santa Monica (2013) 56 Cal.4th 203, which held that the same-decision defense does not bar recovery of attorney’s fees by a plaintiff who brings claims under the Fair Employment and Housing Act (FEHA). The Court of Appeal declined to do this, finding that Harris did not apply to the facts of the case. 

The Court of Appeal found that Section 1102.6 instructs that plaintiff bears the burden of showing that an illicit motive affected the defendant’s decision. But if the employer proves by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in whistleblower activities, then the “instructions end, and so does the case. The statute does not include an exception to the same-decision defense, a limitation on its extent, or any other indication that a plaintiff may yet recover attorney’s fees.”² The Court of Appeal recognized that while the plaintiff did carry the burden of proving retaliation, that is not the same as prevailing in the action.

The Court of Appeal declined to extend the holding in Harris to the plaintiff’s case because Harris “warns against analogizing FEHA to section 1102.6.” The Harris court observed that “the use of different language in different statues usually requires a different construction, even if the statutes are comparable in some way.” 

In sum, relying on the plain language of the whistleblower retaliation statute, the Court of Appeal declined to require the award of fees and costs to the plaintiff. The plaintiff did not bring a “successful action” under the plain language of the statute where his employer could prove that it would have made the same decisions for independent and legitimate reasons, even when coupled with retaliatory conduct. 

Accordingly, employers that can establish a same-decision defense in whistleblower retaliation claims can overcome not only the plaintiff’s underlying whistleblower claim, but also a request for an award of attorney’s fees and costs. Employers, as always, are encouraged to document reasons for actions that employees could construe as “adverse,” especially when the employee has the potential to allege whistleblower retaliation claims.

Elected Official Is Not an Employee Entitled to Whistleblower Protections

On July 7, 2025, in Brown v. City of Inglewood, the California Supreme Court considered whether an elected treasurer is an employee under Section 1106, subject to the protections of Section 1102.5. The Supreme Court ruled that Section 1102.5’s definition of “employee” specifically excludes elected officials. Thus, elected officials, even those paid on a W-2 by a local, city, county, or other government entity, do not enjoy the protections of the statute. 

The plaintiff in this case was the City of Inglewood’s treasurer, elected to that post in 1987. In late 2019 and into 2020, when plaintiff still occupied that role, she raised concerns to the mayor and councilmembers about the city’s financial affairs. She alleged that the mayor had approved an overpayment of approximately $77,000 to a city contractor in violation of Penal Code section 424, prohibiting the misappropriation of public funds. The plaintiff alleged that city officials mistreated her after she raised these concerns, including, among other things, denying her “seat” at city council meetings, excluding her from several city committees, reducing her multi-million dollar investment authority to $50,000, restricting her use of investment software, deactivating her computer, improperly excluding her from city hall based on coronavirus testing requirements, removing her authority for certain vendor requests, and reducing her monthly salary as treasurer from $8,000 to $1,404. The plaintiff then filed a retaliation claim under Section 1102.5 in the Superior Court of Los Angeles.  

The city argued that her complaint lacked merit because the plaintiff, as an elected official, was not an employee within the statute, referencing her statement to a local newspaper that “I’m not an employee [but rather am] elected by the people to be their eyes, ears, and voice.” The plaintiff countered that her regular paychecks and annual W-2 forms showing deductions for employee’s taxes and benefits, such as health insurance, retirement, and workers’ compensation, demonstrated that she was an employee. The Court of Appeal ruled that Section 1106’s definition of “employee” excluded elected officials, and thus the plaintiff was not entitled to whistleblower protections of Section 1102.5. The plaintiff appealed to the California Supreme Court.

The Supreme Court examined the language of Sections 1102.5 and 1106 and the definition of “employee.” Section 1106 defines “employee” to include but not be limited to, “any individual employed by the state or any subdivision thereof, any county, city, city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, political subdivision, or the University of California.” The Supreme Court noted that although the term “employee” included “various public entity employees,” the statute’s definition did not include “elected officials.” 

In reaching its conclusion, the Supreme Court discounted the definition of “employee” in other statutes previously reviewed by the lower court, including Labor Code section 3351, which defines the term in context of the state’s workers’ compensation laws. Section 3351’s expansive definition of “employee” expressly includes “[a]ll elected and appointed paid public officers.”³ The Supreme Court found that Section 3351’s plain language was not probative where “one provision was added many years after the enactment to the statute containing no such provision.”⁴

The Supreme Court placed weight instead on the legislative history of Sections 1102.5 and 1106. The Supreme Court noted that the original purpose of Section 1106 was to protect “rank-and-file” employees, not elected officials, from supervisors and managers. The Court observed that the legislative history shows that proponents of Section 1106 originally aimed to encourage public employees to report illegal activities by managers and supervisors notwithstanding concerns about retaliation. 

The Supreme Court noted that elected officials differ from rank-and-file employees because elected officials are responsible to the electorate rather than to managers or supervisors in a conventional sense.⁵ The Court further noted that retaliation is likely to come from other elected officials, and Section 1106’s legislative history gives no indication that the legislature sought to subject such actions to judicial scrutiny.

The Supreme Court noted that when the legislature enacted Section 1106 in 1992, it could have included elected officers but did not. The Supreme Court thus affirmed the Court of Appeal ruling that the plaintiff, an elected official, was not an “employee” for purposes of Section 1102.5 and could not maintain a cause of action for retaliation. In dicta, the Supreme Court also noted that under Section 1102.5 independent contractors likewise are not employees afforded the protections of the statute.

Employers can take some reassurance that the protections of Section 1102.5 cannot be expanded beyond “employees.” While organizations should ensure that all workers are properly classified, this opinion may give some relief to employers concerned about the expansion of statutory protections beyond the employee ranks.