What must a California whistleblower prove?

For years courts applied the federal McDonnell Douglas burden-shifting framework to California whistleblower claims, which ends by asking the employee to show the employer's stated reason was a pretext. Lawson held that framework does not govern here.

The applicable standard is the one the Legislature wrote into Labor Code § 1102.6. The employee must show, by a preponderance of the evidence, that protected whistleblowing was a contributing factor in the adverse action. That is a lower bar than proving it was the reason.

The burden then shifts, and it shifts hard. The employer must demonstrate by clear and convincing evidence that it would have taken the same action for legitimate, independent reasons even if the employee had not engaged in protected activity. Clear and convincing is a materially higher standard than the preponderance standard used elsewhere in employment litigation.

What this changes in practice is the value of contemporaneous documentation. An employer meeting a clear-and-convincing burden is usually relying on a record created before the complaint — a performance issue already documented, a reorganisation already decided. A justification assembled afterwards rarely reaches that standard.