Whistleblowers whose employers retaliate against them received some good news recently from the California Supreme Court. On January 7, 2022, the Court handed down a decision in Lawson v. PPG Architectural Finishes, Inc., holding that whistleblowers may prove their claims by a “preponderance of the evidence,” and that employers can defeat such claims only by showing “by clear and convincing evidence” that they would have taken the same adverse action even if the employee had not engaged in whistleblowing. A “preponderance of the evidence” standard is relatively low – it simply means that it was more likely than not that the employer engaged in unlawful retaliation. By contrast, the “clear and convincing evidence” standard is far higher, meaning that the employer will have a difficult time proving its defense than the employee will have in proving that retaliation occurred.
The Court rejected the employer’s argument that whisteblower claims should be evaluated using a more stringent test that is typically used in federal lawsuits.
This victory for whistleblowers comes on the heels of the California Legislature’s decision in 2021 to permit whistleblowers who prevail on their claims to recover their attorneys’ fees from a losing employer. Previously, prevailing whistleblowers had to bear their own attorneys’ fees.
Associate Justice Leondra Kruger, who is rumored to be a contender for a U.S. Supreme Court seat after Justice Stephen Breyer announced he will retire, authored the unanimous decision.
Lauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation.