What Counts as Protected Activity Under California’s Workplace Retaliation Laws?

Why does one employee’s complaint lead nowhere, while another employee who raises what seems like a similar concern ends up with a viable retaliation claim? The difference often comes down to a legal concept that sounds simple but is actually one of the most litigated questions in California employment law: what qualifies as “protected activity.”

Retaliation claims do not turn on whether an employee was treated unfairly in some general sense. They turn on whether the employee did something the law specifically protects, and whether an employer took an adverse action because of it. Understanding where that line falls is worth examining more closely.

The Statutory Starting Point

California Labor Code Section 1102.5 is the state’s primary whistleblower protection statute, and it is broader than many people assume. It prohibits an employer from retaliating against an employee for disclosing information the employee reasonably believes reflects a violation of a local, state, or federal law, or of a rule or regulation. Critically, the disclosure does not need to go to a government agency to count. A report made internally to a supervisor or to another employee with authority to investigate or correct the issue, can also be protected.

The California Supreme Court has interpreted this statute broadly in recent years. In Lawson v. PPG Architectural Finishes, Inc., decided in January 2022, the court held that Section 1102.5 retaliation claims are evaluated under the framework in Labor Code Section 1102.6, which does not require the employee to disprove every possible legitimate explanation for the employer’s action. Instead, once an employee shows that protected activity was a contributing factor in an adverse decision, the burden shifts to the employer to prove, by clear and convincing evidence, that it would have taken the same action for independent, lawful reasons. That is a meaningfully different standard than what applies in many other types of employment claims, and it reflects a legislative choice to make these protections easier to enforce.

Reports That Do Not Need to Reveal Something New

One question that comes up often is whether an employee has to be the first person to raise an issue for it to count as a disclosure. In 2023, the California Supreme Court addressed this directly in People  ex rel. Garcia-Brower v. Kolla’s, Inc., holding that Section 1102.5(b) protects an employee’s report even when the person receiving it already knew about the underlying conduct. In other words, restating a known problem to someone with authority over it can still be protected activity. This matters because retaliation often follows the employee who keeps raising an issue, not necessarily the one who first identified it.

What Tends to Fall Outside the Statute

Not every workplace complaint is protected activity. A general expression of dissatisfaction, a personality conflict, or a disagreement about business strategy typically does not, by itself, meet the legal threshold. The distinguishing factor is usually whether the employee’s report or opposition connects to a suspected violation of a specific law, regulation, or public policy. This is part of why these cases are so fact-dependent. Two employees describing similar workplace friction may be in very different legal positions depending on what exactly was communicated, to whom, and how it was documented.

Why This Distinction Matters in Practice

For an employee trying to understand a recent termination, demotion, or change in job duties, the timing and content of any prior complaints often become central to the analysis. For an employer, it underscores why documentation and consistent policy application matter well before a dispute ever arises.

Questions like these rarely have a one-size-fits-all answer, which is exactly why San Jose workplace retaliation attorneys look closely at the specific communications and circumstances involved in each case. If you believe you experienced retaliation after raising a concern at work, we encourage you to reach out to Costanzo Law Firm, APC so we can talk through what happened and what your options may look like.

Source:

supreme.courts.ca.gov/case/s269456-garcia-brower-v-kollas