California Labor Code section 1102.5 authorizes employees to recover attorneys’ fees if they bring a successful action. However, the employer may preclude an award of attorney’s fees to the employee by establishing the same-decision affirmative defense outlined in Labor Code section 1102.6.
Link to Background on California Labor Code Section 1102.5 Whistleblower Retaliation Claims Background on California Labor Code Section 1102.5 Whistleblower Retaliation Claims
On July 8, 2025, California’s Second District Court of Appeals reversed a trial court’s decision awarding attorneys’ fees to an employee alleging whistleblower retaliation under Labor Code section 1102.5. The Court of Appeals explained that there is no discretion provided to courts in awarding attorneys’ fees under Labor Code section 1102.5 – meaning, if an employer successfully establishes the same-decision affirmative defense scheme in section 1102.6, the employee has not brought a “successful action” that would warrant an award of attorneys’ fees.
In 2017, Lampkin, a former deputy at the Los Angeles Sheriff’s department, filed a single cause of action for whistleblower retaliation under Labor Code section 1102.5 against the county. Lampkin requested monetary damages, but no injunctive or declaratory relief. At trial, the jury found that although Lampkin established that he had engaged in protected activity, the county also met its burden that it would have made the same decision for independent, legitimate reasons. Considering this, the jury did not award Lampkin damages. Lampkin requested the trial court declare him the prevailing party, relying on Harris v. City of Santa Monica (2022) 79 Cal.App.5th 367, which holds that the same-decision defense does not bar a fee award on claims brought under the Fair Employment and Housing Act (FEHA). The trial court agreed and allowed Lampkin to file a memorandum of costs and a motion for attorneys’ fees. The trial court then awarded Lampkin costs of $52,043.65 and $400,000 in attorneys’ fees. The county appealed.
The Court of Appeals reversed the trial court’s decision and refused to extend the decision in Harris to claims brought forth under Labor Code section 1102.5. The court found that the application of Harris to FEHA claims was distinguishable from the Labor Code for three reasons:
- The cases were procedurally different. In Harris, the jury had awarded monetary damages;
- The FEHA expressly grants courts discretion to award attorneys’ fees, whereas Labor Code section 1102.5 does not.
- The FEHA has broader statutory language than Labor Code section 1102.5. The FEHA only prohibits actions against an employee because of their membership in a protected class, which may be interpreted multiple ways. In contrast, the Labor Code section 1102.6 offers straightforward instructions that once the same-decision defense is met, the case ends. There is no limitation on the extent of or different ways to interpret the same-decision defense.
The Court of Appeals recognized that the Legislature included the same-decision defense in Labor Code section 1102.6 to limit employer liability in cases where a legitimate, independent reason for the adverse action exists. Without this limitation, for example, a plaintiff could potentially prevail on claims where protected disclosure played a minor role in the employer’s decision, exposing employers to liability for decisions influenced by mere passing remarks.
Link to Takeaways for Employers: Attorneys’ Fees and the Same-Decision Defense Under Labor Code 1102.5 Takeaways for Employers: Attorneys’ Fees and the Same-Decision Defense Under Labor Code 1102.5
Lampkin sets forth a clear distinction between FEHA and Labor Code section 1102.5 whistleblower retaliation claims. While this decision may offer employers relief when they successfully prove an affirmative defense, it is arguably limited to situations where relief is obtained. The Lampkin court expressed no opinion as to the outcome where a plaintiff obtained some form of relief, for example injunctive relief.