Our neutral, fact-finding investigations are most commonly detailed tools that enable employers to make employment decisions. It is therefore critical we remain up-to-date regarding the changing legal landscape to understand which facts are relevant to reaching an informed decision. While we investigate a variety of employment-related concerns, a specific form of retaliation, known as whistleblower retaliation, sometimes crosses our desks.
What is Whistleblower Retaliation?
Whistleblower retaliation occurs when an employer takes negative employment action against an employee who reported conduct by their employer that they reasonably believe is against the law. In California, Labor Code Section 1102.5 (California’s whistleblower statute) prohibits retaliation against an employee who reports conduct by the employer that the employee reasonably believes to be illegal. As reflected in the statute, only “employee[s]” are protected under this statute…but who are considered employees?
Who Are “Employees” Under Section 1102.5?
The California Supreme Court’s July 7, 2025 decision in Brown v. City of Inglewood ruled that elected officials are not considered “employees” under Labor Code Section 1102.5. This ruling affirms the Court of Appeal ruling that elected officials are not “employees” under Labor Code Section 1102.5, and therefore may not seek relief under this statute.
Here, Plaintiff Wanda Brown, an elected official for the City of Inglewood, reported concerns about the misappropriation of public funds to the City Council in 2019 and 2020. After Brown made this report, the City Council voted to reduce her salary and her job responsibilities. Brown then sued the City, alleging, in part, that the City retaliated against her for reporting this concern, and invoked protections under Labor Code Section 1102.5. The trial court did not strike Brown’s 1102.5 retaliation cause of action. However, the Court of Appeal reversed this decision.
The Court of Appeal concluded that Brown was not an employee who could invoke Section 1102.5’s protections because she is an elected official. In determining this, the Court of Appeal relied on Labor Code Section 1106’s definition of “employee,” which does not mention elected officials. The Court of Appeal reasoned this exclusion was intentional because the Legislature expressly included elected officials in definitions of “employee” related to workers’ compensation in Section 3351. The Court of Appeal found the statute’s language “clear and unambiguous” and declined Brown’s claim.
The California Supreme Court granted review to determine the narrow question of whether elected officials are employees for the purposes of whistleblower protection under Section 1102.5[LM1] .
The California Supreme Court affirmed the Court of Appeal’s decision that elected officials are not employees for the purposes of whistleblower protection under Section 1102.5. In reaching this determination, the California Supreme Court examined other California statutes to ascertain if the exclusion of elected officials in the definition of “employee” in Section 1102.5 [LM2] was intentional. In conducting this review, the California Supreme Court noticed the inclusion or exclusion of elected officials varied, so they turned to the legislative history of the definition of “employee” in Section 1106 for guidance.
The legislative history of Section 1106 suggested a “particular purpose of protecting rank-and-file employees from supervisors and managers,” not, as Brown argued, elected officials. Rather, elected officials are distinguishable from rank-and-file employees because they are accountable to the electorate, not a manager in a conventional sense. Further, the legislative history reflected a focus on retaliation by “supervisors or managers,” not retaliation through the legislature or public, as would be relevant for elected officials. The California Supreme Court ruled this lack of legislative history related to elected officials and the silence of the statute bars elected officials from seeking relief under Section 1102.5.
Now What?
While the clarification in Brown only impacts elected officials, it is still important for employers to ensure their policies and practices are consistent with this change. For investigators, it will be relevant to discuss with employers how they wish to structure the scope of the investigation to ensure they provide factual findings consistent with the updated law, and findings that enable effective employment decisions.
[LM1]The “(b)” is not referenced before this—should it be added elsewhere, removed here, or fine as-is?
[LM2]Not sure if this is too vague—should the section number should be given here instead?
If your agency requires an independent investigation into allegations made against elected officials, contact Van Dermyden Makus to connect with one of our many attorney investigators experienced in conducting investigations involving elected officials.