Section 1102.5 Anti-Retaliation Protection Explained

anti-retaliation-protection-1102.5Section 1102.5(b) protects an employee from retaliation by his or her employer for disclosing information to a law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of state or federal law. Hager v. County of Los Angeles (2014). Section 1102.5(b) has been broadly construed to protect an employee from retaliation by the employer even where the report to law enforcement concerned a violation of law committed by a fellow employee or contractor, and not by the employer. McVeigh v. Recology San Francisco (2013) . Where an employee is harmed by retaliation in violation of section 1102.5, he is entitled to maintain a damage claim against the employer.

To establish a prima facie case of retaliation under section 1102.5(b), 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. (McVeigh). An employee engages in protected activity under section 1102.5(b) when he or she discloses to a governmental agency reasonably based suspicion of illegal activity. If the plaintiff meets his initial burden when making a claim, the defendant has the burden to prove a legitimate, non-retaliatory explanation for its actions. To prevail on this type of claim then, the plaintiff has to show that the explanation is a pretext for the retaliation and not the actual, true reason for the action against that complaining employee.

Where the plaintiff succeeds in proving a violation of section 1102.5(b), compensatory damages are recoverable, including economic damages for past and future wage loss as well as emotional distress damages.

In a recent case of Cardenas v M. Fanaian DDS, Ms. Cardenas reported to the Reedley Police Department that a coworker may have stolen her wedding ring at her workplace. She was terminated from her employment as a dental hygienist shortly after making that report. Cardenas filed a lawsuit against her employer, M. Fanaian, D.D.S., Inc. (defendant), and against Masoud Fanaian, D.D.S. (Dr. Fanaian) individually for retaliation in violation of section 1102.5. The jury found in favor of Cardenas, awarding her $117.768 in damages.

The power of this section is that it applies to a variety of situations and complaints by employees. Pretty much a report of any conduct that might violate the law is protected. Further, all employers (and not just employers of a certain size, as it’s the case with FMLA and FEHA/ADA claims) are subjected to this section.