The California Supreme Court clarified Jan. 27 that in determining whistleblower retaliation, courts should follow California’s framework law, not a 1973 United States Supreme Court decision that courts have been improperly following.
Labor Code section 1102.5 has prescribed a framework for determining whistleblower retaliation since 2003: An employee whistleblower must prove by preponderance of the evidence that retaliation was a contributing factor in adverse action taken against them, and then the employer bears the burden by proving through clear and convincing evidence that it would have taken the same action for legitimate and independent reasons, according to the court’s opinion.
Since then, however, some courts have been applying
