Fundamental public policy prohibits the retaliatory discharge of employees for whistleblowing in the public interest. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 670-671, 254 Cal.Rptr. 211, 765 P.2d 373.) “This provision reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77, 78 Cal.Rptr.2d 16, 960 P.2d 1046; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn.1.)

Whistleblower retaliation protections exist under California Labor Code, section 1102.5; California Labor Code, section 6310; and California Government Code, section 8547.10.

Labor Code, section 1102.5

It is unlawful for “[a]n employer, or any person acting on behalf of the employer, [to] retaliate 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.” (Labor Code § 1102.5(b).)

It is also unlawful for “[a] employer, or any person acting on behalf of the employer, [to] retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Labor Code § 1102.5(c).)

Courts have held the employee must be able to point to some legal foundation for his suspicion – some statute, rule or regulation which may have been violated by the conduct he or she disclosed. (Jadwin v. Cty. of Kern (E.D. Cal. 2009) 610 F.Supp.2d 1129, 1154; Love v. Motion Indus., Inc. (N.D. Cal. 2004) 309 F.Supp.2d 1128, 1135.)

Statutory claims for retaliation must be specifically pled. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) As such, the plaintiff must set forth facts in his or her complaint that are “sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied.” (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.) Where a plaintiff attempts to prove retaliation by circumstantial evidence, the McDonnell Douglas burden-shifting framework applies. (Mokler v. County of Orange (2007) 157 Cal.App.4th at 138.) Under this framework,

1. the plaintiff must initially establish a prima facie case of retaliation,
2. the defendant must then articulate a legitimate nonretaliatory explanation for its acts, and
3. in response, the plaintiff must show that this explanation is merely a pretext for the retaliation.

(Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453, 116 Cal.Rptr.2d 602 (Akers); Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68–69, 105 Cal.Rptr.2d 652.)

To establish a prima facie case of retaliation, “a plaintiff must show

1. she engaged in a protected activity,
2. her employer subjected her to an adverse employment action, and
3. there is a causal link between the two.”

(Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384; Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)

An employee engages in protected activity when he or she discloses reasonably based suspicions of illegal activity. (Mokler v. Cty. of Orange (2007) 157 Cal.App.4th 121, 138.) “Essential to a [retaliation claim’s] causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.” (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 70.) An adverse action must occur “within a relatively short time” after an employer gains knowledge of an employee’s involvement in protected activity. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69.)

Labor Code, section 6310

“[A]n employee must be protected against discharge for a good faith complaint about working conditions which he believes to be unsafe.” (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 109.)

“Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has made a bona fide oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative, of unsafe working conditions, or work practices, in his or her employment or place of employment, or has participated in an employer-employee occupational health and safety committee, shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.” (Labor Code § 6310(b).)

Government Code, section 8547.1

“[A]ny person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a university employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party.” (Gov. Code § 8547.10(c); Terris v. City of Santa Barbara (2018) 20 Cal.App.5th 551, 555-558.)

“Protected disclosure means a good faith communication, including a communication based on, or when carrying out, job duties, that discloses or demonstrates an intention to disclose information that may evidence

1. an improper governmental activity, or
2. a condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.”

(Gov. Code § 8547.2(e).)

An “[i]mproper governmental activity” is an activity by a state agency or state employee either within the scope of his or her employment or directly related to state government that is

1. is in violation of any state or federal law or regulation,
2. in violation of state policy, procedure, or executive order, or
3. grossly negligent, incompetent, or wasteful.

(Gov. Code § 8547.2(c).)