CACI 4603 Whistleblower Protection—Essential Factual Elements (Lab. Code, § 1102.5)
California Civil Jury Instructions CACI
4603 Whistleblower Protection—Essential Factual Elements (Lab. Code, § 1102.5)
[Name of plaintiff] claims that [name of defendant] [discharged/[other adverse employment action]] [him/her/nonbinary pronoun] in retaliation for [his/her/nonbinary pronoun] [disclosure of information of/refusal to participate in] an unlawful act. In order to establish this claim, [name of plaintiff] must prove all of the following:
1.That [name of defendant] was [name of plaintiff]’s employer;
2.[That [[name of plaintiff] disclosed/[name of defendant] believed that [name of plaintiff] [had disclosed/might disclose]] to a [government agency/law enforcement agency/person with authority over [name of plaintiff]/ [or] an employee with authority to investigate, discover, or correct legal [violations/noncompliance]] that [specify information disclosed];]
[That [name of plaintiff] [provided information to/testified before] a public body that was conducting an investigation, hearing, or inquiry;]
[That [name of plaintiff] refused to [specify activity in which plaintiff refused to participate];]
3.[That [name of plaintiff] had reasonable cause to believe that the information disclosed [a violation of a [state/federal] statute/[a violation of/noncompliance with] a [local/state/federal] rule or regulation];]
[That [name of plaintiff] had reasonable cause to believe that the [information provided to/testimony before] the public body disclosed [a violation of a [state/federal] statute/[a violation of/noncompliance with] a [local/state/federal] rule or regulation];]
[That [name of plaintiff]’s participation in [specify activity] would result in [a violation of a [state/federal] statute/[a violation of/noncompliance with] a [local/state/federal] rule or regulation];]
4.That [name of defendant] [discharged/[other adverse employment action]] [name of plaintiff];
5.That [name of plaintiff]’s [disclosure of information/refusal to [specify]] was a contributing factor in [name of defendant]’s decision to [discharge/[other adverse employment action]] [name of plaintiff];
6.That [name of plaintiff] was harmed; and
7.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.
[The disclosure of policies that an employee believes to be merely unwise, wasteful, gross misconduct, or the like, is not protected. Instead, [name of plaintiff] must have reasonably believed that [name of defendant]’s policies violated federal, state, or local statutes, rules, or regulations.]
[It is not [name of plaintiff]’s motivation for [his/her/nonbinary pronoun] disclosure, but only the content of that disclosure, that determines whether the disclosure is protected.]
[A disclosure is protected even though disclosing the information may be part of [name of plaintiff]’s job duties.]
New December 2012; Revised June 2013, December 2013; Revoked June 2014; Restored and Revised December 2014; Renumbered from CACI No. 2730 and Revised June 2015; Revised June 2016, November 2019, May 2020
Directions for Use
The whistleblower protection statute of the Labor Code prohibits retaliation against an employee who, or whose family member, discloses information about, or refuses to participate in, an illegal activity. (Lab. Code, § 1102.5(b), (c), (h).) Liability may be predicated on retaliation by “any person acting on behalf of the employer.” (Lab. Code, § 1102.5(a)−(d).) Select any of the optional paragraphs as appropriate to the facts of the case. For claims under Labor Code section 1102.5(c), the plaintiff must show that the activity in question actually would result in a violation of or noncompliance with a statute, rule, or regulation, which is a legal determination that the court is required to make. (Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 719 [253 Cal.Rptr.3d 404].)
Modifications to the instruction may be required if liability is predicated on an agency theory and the agent is also a defendant. Modifications will also be required if the retaliation is against an employee whose family member engaged in the protected activity.
Select the first option for elements 2 and 3 for claims based on actual disclosure of information or a belief that plaintiff disclosed or might disclose information. (Cf. Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 648−649 [163 Cal.Rptr.3d 392] [under prior version of statute, no liability for anticipatory or preemptive retaliation based on fear that plaintiff might file a complaint in the future].) Select the second options for providing information to or testifying before a public body conducting an investigation, hearing, or inquiry. Select the third options for refusal to participate in an unlawful activity, and instruct the jury that the court has made the determination that the specified activity would have been unlawful.
It has been held that a report of publicly known facts is not a protected disclosure. (Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 858 [136 Cal.Rptr.3d 259].) Another court, however, has held that protection is not necessarily limited to the first public employee to report unlawful acts to the employer. (Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538, 1548−1553 [176 Cal.Rptr.3d 268]; see Lab. Code, § 1102.5(b), (e).)
“Adverse employment action” is viewed the same as it is under the Fair Employment and Housing Act. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387 [37 Cal.Rptr.3d 113]; see CACI No. 2505, Retaliation—Essential Factual Elements.) Element 4 may be modified to allege constructive discharge or adverse acts that might not be obviously prejudicial. See CACI No. 2509, “Adverse Employment Action” Explained, and CACI No. 2510, “Constructive Discharge” Explained, for instructions that may be adapted for use with this instruction.
The employee must demonstrate by a preponderance of evidence that a protected activity was a contributing factor in the adverse action against the employee. The employer may then attempt to prove by clear and convincing evidence that the action would have been taken anyway for legitimate, independent reasons even if the employee had not engaged in the protected activities. (See Lab. Code, § 1102.6; CACI No. 4604, Affirmative Defense—Same Decision.)
Sources and Authority
•Retaliation Against Whistleblower Prohibited. Labor Code section 1102.5.
•Affirmative Defense: Same Decision. Labor Code section 1102.6.
•“The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation. [¶] We are concerned here with the first element of a section 1102.5(b) retaliation claim, establishing a prima facie case of retaliation. To do that, 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, supra, 134 Cal.App.4th at p. 1384, internal citations omitted.)
•“In order to prove a claim under section 1102.5(b), the plaintiff must establish a prima facie case of retaliation. It is well-established that such a prima facie case includes proof of the plaintiff’s employment status.” (Bennett v. Rancho California Water Dist. (2019) 35 Cal.App.5th 908, 921 [248 Cal.Rptr.3d 21], internal citations omitted.)
•“In 1984, our Legislature provided ‘whistle-blower’ protection in section 1102.5, subdivision (b), stating that an employer may not retaliate against an employee for disclosing a violation of state or federal regulation to a governmental or law enforcement agency. This provision reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation. Section 1102.5, subdivision (b), concerns employees who report to public agencies. It does not protect plaintiff, who reported his suspicions directly to his employer. Nonetheless, it does show the Legislature’s interest in encouraging employees to report workplace activity that may violate important public policies that the Legislature has stated. The state’s whistle-blower statute includes administrative regulations as a policy source for reporting an employer’s wrongful acts and grants employees protection against retaliatory termination. Thus, our Legislature believes that fundamental public policies embodied in regulations are sufficiently important to justify encouraging employees to challenge employers who ignore those policies.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 76–77 [78 Cal.Rptr.2d 16, 960 P.2d 1046].)
•“[T]he purpose of … section 1102.5(b) ‘is to ‘ “encourag[e] workplace whistle-blowers to report unlawful acts without fearing retaliation.” ’ ” (Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 923 [180 Cal.Rptr.3d 359].)
•“Once it is determined that the activity would result in a violation or noncompliance with a statute, rule, or regulation, the jury must then determine whether the plaintiff refused to participate in that activity and, if so, whether that refusal was a contributing factor in the defendant’s decision to impose an adverse employment action on the plaintiff.” (Nejadian, supra, 40 Cal.App.5th at p. 719.)
•“As a general proposition, we conclude the court could properly craft instructions in conformity with law developed in federal cases interpreting the federal whistleblower statute. As the court acknowledged, it was not bound by such federal interpretations. Nevertheless, the court could properly conclude that the jury required guidance as to what did and did not constitute ‘disclosing information’ or a ‘protected disclosure’ under the California statutes.” (Mize-Kurzman, supra, 202 Cal.App.4th at p. 847.)
•“The court erred in failing to distinguish between the disclosure of policies that plaintiff believed to be unwise, wasteful, gross misconduct or the like, which are subject to the [debatable differences of opinion concerning policy matters] limitation, and the disclosure of policies that plaintiff reasonably believed violated federal or state statutes, rules, or regulations, which are not subject to this limitation, even if these policies were also claimed to be unwise, wasteful or to constitute gross misconduct.” (Mize-Kurzman, supra, 202 Cal.App.4th at pp. 852–853.)
•“[I]t is not the motive of the asserted whistleblower, but the nature of the communication that determines whether it is covered.” (Mize-Kurzman, supra, 202 Cal.App.4th at p. 852, original italics.)
•“[I]f we interpret section 1102.5 to require an employee to go to a different public agency or directly to a law enforcement agency before he or she can be assured of protection from retaliation, we would be encouraging public employees who suspected wrongdoing to do nothing at all. Under the scenario envisioned by the [defendant], if the employee reports his or her suspicions to the agency, … , he or she will have to suffer any retaliatory conduct with no legal recourse. If the employee reports suspicions to an outside agency or law enforcement personnel, he or she risks subjecting the agency to negative publicity and loss of public support which could ensue without regard to whether the charges prove to be true. At the same time, a serious rift in the employment relationship will have occurred because the employee did not go through official channels within the agency which was prepared to investigate the charges. We see no reason to interpret the statute to create such anomalous results.” (Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236, 243 [101 Cal.Rptr.2d 893].)
•“Labor Code section 1102.5, subdivision (b) protects employee reports of unlawful activity by third parties such as contractors and employees, as well [as] unlawful activity by an employer. In support of our conclusion, we note that an employer may have a financial motive to suppress reports of illegal conduct by employees and contractors that reflect poorly on that employer.” (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 471 [152 Cal.Rptr.3d 595], internal citation omitted.)
•“We are persuaded that [instructing the jury that reporting publicly known facts is not a protected disclosure] was a proper limitation on what constitutes disclosure protected by California law.” (Mize-Kurzman, supra, 202 Cal.App.4th at p. 858.)
•“The report of ‘publicly known’ information or ‘already known’ information is distinct from a rule in which only the first employee to report or disclose unlawful conduct is entitled to protection from whistleblower retaliation.” (Hager, supra, 228 Cal.App.4th at p. 1552.)
•“Protection only to the first employee to disclose unlawful acts would defeat the legislative purpose of protecting workplace whistleblowers, as employees would not come forward to report unlawful conduct for fear that someone else already had done so. The ‘first report’ rule would discourage whistleblowing. Thus, the [defendant]’s interpretation is a disincentive to report unlawful conduct. We see no such reason to interpret the statute in a manner that would contradict the purpose of the statute.” (Hager, supra, 228 Cal.App.4th at p. 1550.)
•“Matters such as transferring employees, writing up employees, and counseling employees are personnel matters. ‘To exalt these exclusively internal personnel disclosures with whistleblower status would create all sorts of mischief. Most damagingly, it would thrust the judiciary into micromanaging employment practices and create a legion of undeserving protected “whistleblowers” arising from the routine workings and communications of the job site. …’ ” (Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 822 [98 Cal.Rptr.3d 281].)
•“ ‘A wrongful termination action is viable where the employee alleges he [or she] was terminated for reporting illegal activity which could cause harm, not only to the interests of the employer but also to the public.’ ‘An action brought under the whistleblower statute is inherently such an action.’ To preclude a whistleblower from revealing improper conduct by the government based on confidentiality would frustrate the legislative intent underlying the whistleblower statutes. For reasons of public policy, actions against a public entity for claims of discharge from or termination of employment grounded on a whistleblower claim are not barred by governmental immunity.” (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 365 [225 Cal.Rptr.3d 321], internal citations omitted.)
•“Although [the plaintiff] did not expressly state in his disclosures that he believed the County was violating or not complying with a specific state or federal law, Labor Code section 1102.5, subdivision (b), does not require such an express statement. It requires only that an employee disclose information and that the employee reasonably believe the information discloses unlawful activity.” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592–593 [248 Cal.Rptr.3d 696].)