Appellate Reports

Prohibited retaliation against whistleblowers

2026 February

Prohibited retaliation against whistleblowers

Labor Code 1102.5; effect of plaintiff’s mistake in claiming the employer violated the law

Contereras v. Green Thumb Produce, Inc. (2025) _ Cal.App.5th __ (Fourth Dist., Div. 1.)

In 2020, Manuel Contreras mistakenly determined his former employer, Green Thumb Produce, Inc. (Green Thumb), was violating the Equal Pay Act (EPA; Lab. Code,1 § 1197.5) by paying him less than other coworkers performing similar duties. Contreras did not, however, believe that Green Thumb was paying him less because of his gender, race, or ethnicity. But the EPA does not prohibit variations in wages; it prohibits discriminatory variations in wages. This meant the EPA did not protect Contreras from the wage difference of which he complained. When Contreras, relying on the EPA, described to supervisors his dissatisfaction with being paid less than others who did the same work, Green Thumb terminated his employment.

In turn, Contreras sued Green Thumb, asserting three causes of action for wrongful termination. His second cause of action was based on section 1102.5, subdivision (b), which prohibits employers from retaliating against employees who report legal violations.

At trial, the jury found in Contreras’s favor on all three of his causes of action. Green Thumb filed a motion for partial judgment notwithstanding the verdict (JNOV) claiming the verdict on the whistleblower cause of action was unsupported because Contreras misunderstood the EPA, and his misunderstanding of the law could not provide a proper basis for liability under section 1102.5(b). The trial court agreed, granted the motion, and entered an amended judgment.

On appeal, Contreras challenged the JNOV ruling asserting the evidence at trial adequately supported the jury’s verdict on his whistleblower cause of action. The Court agreed, finding substantial evidence supported the jury’s conclusion that Contreras had reasonable cause to believe Green Thumb violated the EPA, notwithstanding his misinterpretation of that law. It therefore reversed the JNOV ruling and directed the trial court to amend the judgment consistent with the jury’s verdict.

Labor Code section 1102.5 is California’s general whistleblower statute. It prohibits an employer from retaliating “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.”

[T]he protections of section 1102.5(b) apply only where the disclosing employee has reasonable cause to believe that the information discloses a [legal] violation. Accordingly, the relevant inquiry is not whether the conduct actually violated any specific statute or regulation, but whether the plaintiff reasonably believed that there was a violation. 

This is not a case where Contreras claimed a violation of some unnamed statute, rule, or regulation. Instead, Contreras pointed to some legal foundation for his suspicion; namely, the EPA. Further, Contreras’s misinterpretation of the law does not necessarily undermine his section 1102.5(b) claim. Section 1102.5(b) only requires an employee to have “reasonable cause” to believe that a law has been violated. There is no requirement that the employee prove an actual violation. 

The test for “reasonable cause” under section 1102.5 is an objective one. While a lay employee’s incorrect legal interpretation may be unreasonable under some circumstances, we see no basis to find that it will always be unreasonable. Rather, reasonableness is generally a question of fact to be resolved by a jury. Accordingly, Contreras’s incorrect legal analysis does not necessarily bar his section 1102.5 claim.

Based on his discussion with a deputy labor commissioner, and his reading of the FAQ, Contreras believed Green Thumb violated the EPA. Although the deputy labor commissioner did not make a definitive determination, stating only that Green Thumb might have violated the law, it is reasonable for a lay person to give that assessment credit. After all, the Labor Commissioner enforces California’s labor laws.

Contreras also told the jury that his beliefs were based on question 9 of the Labor Commissioner’s “FAQs” about the EPA, which states that an employee may “file a claim if the person who earns more ... has a different job title ... [b]ecause the Equal Pay Act compares jobs that are ‘substantially similar.’” Again, this question does not refer to protected classes and is therefore potentially misleading regarding the required elements of an EPA claim. Similarly, more than half of the questions in the FAQ omit sex, race, or ethnicity. The EPA’s name also increases the potential for confusion, merely referencing equal pay with no mention of protected classes.

“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.”

Since the jury could reasonably find that Contreras’s belief was a reasonable, albeit a mistaken one, it was error to grant the JNOV. 

Jeffrey I. Ehrlich is the principal of the Ehrlich Law Firm, APC, in Claremont. He is the editor-in-chief of the Advocate magazine, and is certified by the California Board of Legal Specialization as an Appellate Specialist.