CACI No. 4603. Whistleblower Protection - Essential Factual Elements (Lab. Code, § 1102.5)

Judicial Council of California Civil Jury Instructions (2020 edition)

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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]];]
2. [or]
2. [That [name of plaintiff] [provided information to/testified before]
a public body that was conducting an investigation, hearing, or
inquiry;]
2. [or]
2. [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];]
3. [or]
3. [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];]
3. [or]
3. [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
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[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,
648649 [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.
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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,
15481553 [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, Affırmative 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
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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
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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].)
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• “ ‘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.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 373, 374
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(II)-B,
Retaliation Under Other Whistleblower Statutes, ¶ 5:1740 et seq. (The Rutter
Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-L, Employment
Torts And Related Claims: Other Statutory Claims, ¶ 5:894 et seq. (The Rutter
Group)
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, §§ 249.12, 249.15 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Public Entities and Offıcers: False
Claims Actions, § 100.42 et seq. (Matthew Bender)
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