(b) An employer, or any person acting on behalf of the employer,
shall not retaliate against an employee for disclosing information,
or because the employer believes that the employee disclosed or may
disclose information, to a government or law enforcement agency, to a
person with authority over the employee or another employee who has
the authority to investigate, discover, or correct the violation or
noncompliance, or for providing information to, or testifying before,
any public body conducting an investigation, hearing, or inquiry, if
the employee has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a violation of
or noncompliance with a local, state, or federal rule or regulation,
regardless of whether disclosing the information is part of the
employee's job duties.
(c) An employer, or any person acting on behalf of the employer,shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
As per the Court of Appeal in Gallup v. Superior Court of Nevada County,
Section 1102.5 is silent regarding administrative remedies, but another section of the Labor Code, section 98.7, subdivision (a), provides in part: “Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation.”
But what about pre-1/1/2014? That's what the Court of Appeal addressed in this Gallup case. The plaintiff was a court employee, who served as a family law mediator. She claims retaliation after she raised some concerns with family law court procedures.
After Gallup filed suit, the defendant court demurred to her complaint, arguing she did not exhaust administrative remedies before the Labor Commissioner per Labor Code section 98.7, quoted above. The trial court overruled the demurer, relying on Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, a court of appeal decision that held exhaustion was not required. Gallup then took her case to trial and won.
On appeal, the employer argued that the trial court erred by failing to sustain the demurrer because Gallup did not exhaust her administrative remedies. The Court of Appeal agreed, rejecting the Lloyd court's holding.
The Court held that the 1/1/14 amendments were not retroactive. The Court also decided that Lloyd was wrongly decided in light of the California Supreme Court's holding in Campbell v. Regents of University of California (2005) 35 Cal.4th 311. In Campbell, the California Supreme Court held that exhaustion of the UC's internal remedies were required before proceeding under section 1102.5 .
The Court here also noted that its decision here conflicts with Satyadi v. West Contra Cost Healthcare Dist. (2014) 232 Cal.App.4th 1022, which held that exhaustion was not required and that the Legislature's recent statute is merely "clarification" of existing law and retroactive. But the Gallup Court disagreed with Satyadi.
Bottom line is that Gallup won her jury trial, but then lost her case because she was not entitled to that trial in the first place. It may be that the Supreme Court must decide whether Satyadi or Gallup is correct. Or the Court may decide that these cases have limited shelf-life, because cases filed after 1/1/2014 are clearly subject to the new statute.
This case is Gallup v. Superior Court of Nevada County and the opinion is here.
