Jury Instructions and Retaliation Claims Under Labor Code § 1102.5(c).
The Second Appellate District held earlier this month that to prevail on a claim for a violation of Labor Code §1102.5(c), a plaintiff must identify both the specific activity and the specific statute, rule, or regulation at issue. After the plaintiff does so, the trial court must then determine the legal question of whether the identified activity would result in a violation or noncompliance with the identified statute, rule, or regulation. And, if the trial court indeed determines that the identified activity would result in such a violation or noncompliance, the jury must then determine the factual issue of whether the plaintiff was retaliated against for refusing to participate in the identified activity. (See, Nejadian v. County of Los Angeles - filed Oct. 1, 2019, Second District, 2019 S.O.S. 2929.) In Nejadian, the trial court erred in instructing a jury that a worker could establish he was subjected to an adverse employment action for purposes of the Fair Employment and Housing Act even if no violation of FEHA was committed. (Id.)