Ninth Circuit Takes an Expansive View of Whistleblower Protection Under Cal. Lab. Code § 1102.5

Aaron Kilgore worked as an environmental consultant on a project his employer was completing for the U.S. Army Reserve Command. He complained to his supervisor, and to a representative from the Army, that he believed the environmental assessment he had been asked to prepare was illegal. He was fired shortly thereafter and brought a claim under Cal. Lab. Code § 1102.5 (the “Whistleblower Statute”).

Kilgore’s employer, SpecPro, argued, among other things, that Kilgore’s report was not protected because Kilgore’s supervisor was not a person “with authority … to investigate, discover, or correct the violation or noncompliance” as required under the Whistleblower Statute. Similarly, SpecPro also argued that Kilgore’s report to the Army officer was part of Kilgore’s “normal duties” of employment – and not, therefore, protected activity. Finally, SpecPro argued that Kilgore could have no reasonable belief that a violation of the law occurred because his report was “forward looking” and could not, therefore, be a report about past illegal activity. The District Court agreed with these arguments and granted summary judgment to SpecPro.

The Ninth Circuit disagreed and reversed. It held that disclosures to “a person with authority over the employee” was sufficient to garner statutory protections. It also rejected the “normal duties” argument, finding that whistleblower activities are protected under the plain language of the statute “regardless of whether disclosing the information is part of the employee’s normal duties.” And finally, the court ruled that Kilgore had a reasonable belief that his report was illegal when it failed to consider prior events – even if the report was intended to be forward looking.

In short, the Ninth Circuit has taken an expansive view of California’s Whistleblower Statute and California employers should carefully investigate all claims of illegality (regardless of who receives the claim) and evaluate whether employees who make those claims (regardless of their job duties) are protected under the law.

Killgore v. Specpro Pro. Servs., LLC, 51 F.4th 973 (9th Cir. 2022) (October 20, 2022)