Tuesday, December 16, 2025
Page 3
Court of Appeal:
Whistleblower Liability Stands Even if Grievant Was Wrong
Opinion Acknowledges Cases Providing That Claimant May Not Rely on Breach of Non-Existent Law, Says Not Unreasonable to Assume Equal Pay Act Demands Wage Parity Even Absent Discriminatory Intent
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday that a trial judge erred in granting a partial judgment notwithstanding the verdict motion as to a whistleblower cause of action, based on a finding that the plaintiff had wrongly complained about legal wage disparities at work, declaring that the man’s misunderstanding of the Equal Pay Act as barring any compensation variance for those doing the same job was not unreasonable as a matter of law.
At issue is California’s whistleblower protection law, found at Labor Code §1102.5, which provides:
“An employer…shall not retaliate against an employee for disclosing information…to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance,…if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute….”
Asserting a violation of the section was Manuel Contreras, who filed a complaint in 2021 against his former employer, Green Thumb Produce Inc., asserting whistleblower, wage-discussion, and employment-rights retaliation claims. In the operative complaint, he alleged that he began researching his legal rights after discovering that he was being paid less than other employees doing similar work.
On Sept. 3, 2020, he brought a “California Equal Pay Act: Frequently Asked Questions” form (“FAQ”) to work, after being directed to a website containing the information by a deputy labor commissioner, and demanded a raise from the human resources manager. He was fired the next day.
Equal Pay Act
Contreras, it turned out, did not raise any violations of the Equal Pay Act, codified at Labor Code §1197.5, which was enacted to address pay disparities between the sexes and has been expanded to also bar compensation differences based on race or ethnicity, as he did not allege that the wage differences were motivated by prohibited discrimination.
After a jury returned a verdict in Contreras’ favor on all three of his causes of action, awarding him $172,428 in damages, Riverside Superior Court Judge Daniel A. Ottolia added $20,000 in statutory penalties for violations of §1102.5 and another provision in September 2023.
Two months later, Ottolia granted the defendant’s motion for partial judgment notwithstanding the verdict, finding that “based on [Contreras’s] own testimony, he had not made any complaints of any violation of law and that [Contreras] cannot make up a non-existent law to gain § 1102.5 protections.”
Green Thumb did not challenge the damages award and only sought to invalidate the 1102.5(b) claim, which allows for the recovery of attorney fees.
Justice David M. Rubin authored yesterday’s opinion, joined in by Presiding Justice Judith McConnell and Justice William Dato, acknowledging case law establishing that a section 1102.5 claimant may not assert a retaliation claim based on a perceived violation of a nonexistent statute but saying:
“Contreras’s misinterpretation of the law does not necessarily undermine his section 1102.5(b) claim….[S]ection 1102.5(b) only requires an employee to have ‘reasonable cause’ to believe that a law has been violated…. As such, section 1102.5 may provide relief for an employee who reasonably believed a legal violation occurred despite incorrectly analyzing the relevant law.”
Perceived Violation
Rubin wrote:
“Green Thumb is correct that a section 1102.5 claimant may not rely on a perceived violation of a nonexistent law. ‘To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation which may have been violated by the conduct he disclosed.’ ”
However, he opined:
“[T]his is not a case where Contreras claimed a violation of ‘some unnamed statute, rule, or regulation.’…Instead, Contreras ‘point[ed] to some legal foundation for his suspicion’…; namely, the EPA.”
Saying that “section 1102.5 may provide relief for an employee who reasonably believed a legal violation occurred despite incorrectly analyzing the relevant law,” he reasoned:
“[C]ommon sense [does not] dictate a different result….According to Green Thumb, our interpretation would allow an employee to recover under section 1102.5(b) under the mistaken belief that an employer is legally required to give a 100 percent pay raise every year, or that women must be paid twice as much as men for the same work. This argument ignores section 1102.5(b)’s ‘objective reasonableness’ requirement….The hypothetical mistaken legal interpretations cited by Green Thumb are unreasonable, precluding any relief under the statute.”
Noting that the purpose behind §1102.5(b) is to encourage whistleblowers to report unlawful acts without fear of retaliation, he added:
“[A]ccepting Green Thumb’s interpretation would defeat the Legislature’s purpose in enacting the law. It would deprive employees of the statute’s protection simply because the workers have no legal training and lack the expertise to properly interpret a statute. Such employees would be reluctant to report suspected violations for fear they misunderstood the law.”
Turning to whether Contreras’ reading of the EPA was reasonable, he wrote:
“We acknowledge that as judges with years of legal education and experience, our reading of the entire FAQ correctly reflects that the EPA only prohibits discriminatory wage variations based on sex, race, or ethnicity. But a lay person with no formal legal training could easily misinterpret the FAQ similarly to Contreras, especially when told by a deputy labor commissioner that there was a potential violation.”
Saying that “that is why the decision in this case properly belonged to a jury of Contreras’s peers,” he pointed out that “[t]he jurors had the FAQ to read for themselves, and they determined that Contreras’s mistaken legal analysis was reasonable from the perspective of a layperson” and that “[a]lthough one could reach a different conclusion, that is not our standard of review.”
The case is Contreras v. Green Thumb Produce Inc., 2025 S.O.S. 3676.
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