Labor Code Section 1102.5 Protects Whistleblower

In Cardenas v. M. Fanaian, D.D.S., Inc., the Court analyzed potential whistleblower retaliation claims. After Cardenas reported to the police that a coworker may have stolen her wedding ring at her workplace, she was terminated from her employment as a dental hygienist.  Cardenas filed a lawsuit against her employer seeking to recover compensatory damages based on two distinct causes of action:  (1) retaliation in violation of Labor Code section 1102.5 (forbidding employers from retaliating against employees who report violations of law to a law enforcement agency) and (2) wrongful termination in violation of public policy under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny).  The jury found in favor of Cardenas on both causes of action and awarded her $117,768 in damages.  The trial court entered judgment on the verdict against defendant. The defendant appealed, arguing that it did not violate any fundamental public policy in terminating Cardenas’s employment.  Defendant also argued the trial court erred by excluding evidence that the real reason Cardenas filed a police report was to serve her private interest, not a public purpose.  The Court asked the parties to submit letter briefs on the questions of whether section 1102.5, subdivision (b) (hereafter section 1102.5(b)) depends on whether the employee’s report to law enforcement concerns conduct that is related to the employment operation or enterprise and whether it applies to an employee who files a report to law enforcement alleging a violation of law relating to a private or individual matter. Additionally, Cardenas asserted that a section 1102.5 cause of action stands alone and does not require a separate showing that the employee’s subjective motivation and/or the particular crime he or she reported concerned a fundamental public policy.  Rather, Cardenas notes that section 1102.5 itself, where the section was violated by the employer, embodies a sufficient public policy for purposes of permitting an award of damages.  The Court agreed Cardenas’s statutory analysis.  It held that the plain and unambiguous language of section 1102.5(b) creates a cause of action for damages against an employer who retaliates against an employee for reporting to law enforcement a theft of her property at the workplace.

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