How Do You Prove A Whistleblower Case?
By Corey Hanrahan
How do you prove a whistleblower case? Whistleblower cases are unique in their burden shifting standard. But before discussing the burden shifting approach, it is first important to establish what is required to prove a whistleblower case under California Labor Code section 1102.5. First, you must prove that you were an employee of the company. Second, you have to prove that you disclosed to a government agency, law enforcement agency, person with authority over you at work, or an employee with authority to investigate, discover, or correct a legal violation conduct that you had a reasonable belief constitutes a violation of state or federal statute, or violation of or noncompliance with a local, state or federal rule or regulation. Third, you have to prove that the employer took an adverse employment action against you, and you have to prove that your whistleblowing activity was a “contributing factor” in the employer’s adverse employment action against you.
“…Whistleblower cases are unique in their burden shifting standard. But before discussing the burden shifting approach, it is first important to establish what is required to prove a whistleblower case under California Labor Code section 1102.5…“
Now, this is where the burden shifting comes into play. The employer has an opportunity to prevail by using the “same decision” defense. Under a higher evidentiary standard, the employer must prove that it would have taken the same adverse employment action (e.g., demotion, termination, suspension, etc.) anyway at that time for legitimate, independent reasons.
In other words, the employer is saying, “Look, if you think we factored the employee’s whistleblowing into our decision to terminate her employment, here are the reasons why we would have terminated her employment at that time anyway, even if she had not blown the whistle.”
This burden shifting standard in whistleblower cases makes it imperative that you retain a skilled and experienced whistleblower attorney to represent you. If you are experiencing retaliation from being a whistleblower, contact The Hanrahan Firm for a free consultation to see what we can do for you.