Workplace Retaliation & Whistleblower Claims (Labor Code § 1102.5)

Wear Trial Law represents employees retaliated against for reporting suspected legal violations, unsafe conditions, wage violations, or discrimination. California law in this area is now among the most favorable to employees in the country — including a statutory presumption of retaliation when adverse action follows protected activity within ninety days, and a burden of proof on employers that is unusually demanding.

The 90-day presumption

Under the Equal Pay and Anti-Retaliation Protection Act, effective January 1, 2024, California law creates a rebuttable presumption of retaliation where an employer disciplines or discharges an employee within ninety days of specified protected activity. The provision amended Labor Code sections 98.6, 1102.5, and 1197.5.

The practical effect is significant. Rather than the employee carrying the initial burden of building a circumstantial case, the presumption arises and the employer must come forward with a legitimate, non-retaliatory explanation.

If you reported something and were disciplined or fired within three months, that timing is not merely suspicious. It has legal weight.

The employer’s burden is heavier than in most claims

For whistleblower claims under Labor Code section 1102.5, the California Supreme Court has confirmed that the statutory framework in section 1102.6 governs — not the familiar burden-shifting test used in discrimination cases.

Under that framework the employee must show, by a preponderance of the evidence, that protected activity was a contributing factor in the adverse action. The burden then shifts to the employer to prove by clear and convincing evidence that it would have taken the same action for legitimate, independent reasons.

That is a demanding standard, and it is materially better for employees than the test many employers and their counsel still assume applies.

What counts as protected activity

• Disclosing information about a suspected violation of a state or federal statute or regulation, to a government agency, to law enforcement, or internally to a supervisor or someone with authority to investigate
• Refusing to participate in an activity that would violate the law
• Reporting wage and hour violations
• Raising a health or safety concern
• Invoking rights under California’s Equal Pay Act
• Complaining about discrimination or harassment

You do not need to be right that a violation occurred. A reasonable belief is generally sufficient — which employees consistently underestimate.

Retaliation is broader than firing

It includes demotion, discipline, suspension, reduced hours or pay, schedule changes, an unwanted transfer, exclusion from meetings and opportunities, sudden negative reviews, and threats of any of these. The test is whether the action would deter a reasonable employee from engaging in protected activity.

What to preserve

The report itself — how you made it, to whom, and when. This is the single most important document in the case. If it was verbal, write a contemporaneous note. Performance reviews before and after. Every communication following the report. Names of witnesses. The employer’s own policy on reporting and whether it was followed.

Free and confidential. Call 415-233-9688.