CA Supreme Court Lowers Threshold for Employees to Prove Allegations of Whistleblower Retaliation

Now more than ever, California employers should take caution when firing, demoting, or disciplining an employee. In a recent unanimous decision, the California Supreme Court adopted a lower evidentiary standard for employees to prevail on claims brought under California’s whistleblower retaliation law. In light of this recent decision, it is important for employers to understand what meets the lowered standard and what this means for businesses.

The Lowered Whistleblower Retaliation Standard

Previously, for retaliation claims, employers only had to show a legitimate, non-retaliatory reason for an adverse employment decision, at which point the burden would shift to the employee to prove that reason is pretextual. But the Court held that for whistleblower retaliation claims, an employer must instead prove, by “clear and convincing” evidence, that it would have taken the same action against the employee “even had the plaintiff not engaged in protected activity.” As a result, it is easier for employees alleging retaliation to prove their case and avoid dismissal before trial.

Key Takeaway

Moving forward, employers should review their anti-retaliation policies. When an employee complaint is made, employers should respond promptly and be transparent about how investigations are conducted and about confidentiality and their anti-retaliation protections. Importantly, supervisors and employees should receive training on what constitutes retaliation and the legal protections available. If you have any questions or would like counseling on employment decisions, Dunn DeSantis Walt & Kendrick, LLP can help provide guidance to your business.

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