No, not under California’s main whistleblower statute. On September 28, 2026, a California Court of Appeal held in a published opinion that an employee “cannot sue an individual manager or supervisor for retaliation under section 1102.5.” The employer is still on the hook. So the ruling doesn’t shrink a company’s exposure much, but it gives employers a clean answer when an employee’s lawyer names the supervisor as a defendant to raise the pressure or keep the case in state court.
What did the court decide in Chaudhry v. State of California?
The case is Chaudhry v. State of California, No. A173501, from the First Appellate District, Division Four. The opinion is certified for publication, which means trial courts statewide are bound by it unless the Supreme Court of California takes up the case or another Court of Appeal disagrees.
According to the opinion, the plaintiff worked as a dental assistant for the California Department of Corrections and Rehabilitation and alleged that her employer retaliated against her after she complained to Cal/OSHA about workplace safety. She sued the State, the department, and three individual defendants, including her immediate supervisor and a supervising dentist. The trial court granted judgment on the pleadings for everyone.
The individual supervisors argued on appeal that Labor Code section 1102.5 doesn’t reach them at all. The court agreed, calling the question “a matter of first impression in California courts.” It affirmed the judgment for the three individuals and reversed it as to the State and the department on the section 1102.5 claim only, and only on a constructive discharge theory. The employer defendants are back in on that one claim, and the individuals are out.
Why doesn’t “any person acting on behalf of the employer” cover a supervisor?
Section 1102.5(b) says that “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information” about suspected violations of law. Read alone, that sounds like it covers a manager.
The court acknowledged the point. It said the statute “is susceptible of” the employee’s reading, but concluded that the surrounding statutes made the language ambiguous and resolved the ambiguity against individual liability. Sections 1104 and 1105 of the Labor Code point liability at the employer, and three more things drove the result.
The burden-shifting statute speaks only to employers. Labor Code section 1102.6 says that once an employee shows protected activity was a contributing factor, “the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.” The opinion noted that section 1102.6 “does not mention persons acting on behalf of an employer or give them the same affirmative defense as employers.”
The Supreme Court of California had already read similar words the same way. In Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, the court held that FEHA’s retaliation provision doesn’t make individual supervisors personally liable, even though it uses the word “person.” The Chaudhry court said “Most of Jones’ reasoning for construing FEHA as not imposing individual liability for retaliation applies with equal force to section 1102.5(b).”
And the 2013 legislative history doesn’t say otherwise. The court found that the 2013 bills grew out of concern about threats to report workers to immigration authorities, that the Legislature never explained this specific change, and that “nothing in the legislative history suggests the Legislature intended it to allow employees to sue individual managers or supervisors personally.”
I think the court got this right, and I’d say the same if I didn’t defend employers. A supervisor who has to weigh personal assets against every discipline decision is a worse supervisor, and the employee gains almost nothing from the extra defendant.
Which employment claims can still name a supervisor personally?
Chaudhry fits the pattern the Supreme Court set in Reno (1998) and Jones (2008). Harassment is the big exception, and it’s written into the statute.
| Claim | Statute | Supervisor personally liable? | Authority |
|---|---|---|---|
| Whistleblower retaliation | Lab. Code § 1102.5 | No | Chaudhry v. State of California (2026) |
| FEHA retaliation | Gov. Code § 12940(h) | No | Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 |
| FEHA discrimination | Gov. Code § 12940(a) | No | Reno v. Baird (1998) 18 Cal.4th 640 |
| FEHA harassment | Gov. Code § 12940(j)(3) | Yes, for harassment the employee personally commits | The statute itself |
Government Code section 12940(j)(3) provides that “An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee . . . .” Expect plaintiffs’ lawyers to plead harassment against a supervisor where the facts allow it, now that section 1102.5 is closed to them.
What changes for employers, and what doesn’t?
The employer’s exposure is the same as it was. Section 1102.5(f) adds a civil penalty “not exceeding ten thousand dollars ($10,000) per employee for each violation of this section” on top of other remedies, and section 1102.5(j) lets the court award attorney’s fees to a plaintiff who wins. The employer still carries the clear-and-convincing burden under section 1102.6 once the employee makes the initial showing. Nothing in Chaudhry touches any of that.
What changes is the shape of the lawsuit, in three ways.
Removal gets easier to defend. When a California employee sues an out-of-state employer, naming a California supervisor can block removal to federal court. The opinion itself describes a line of federal decisions that let individual section 1102.5 claims stand against fraudulent-joinder arguments “because no California court had expressly held that section 1102.5 does not create individual liability.” That’s no longer true. I expect defense counsel to put Chaudhry at the front of every fraudulent-joinder argument on a section 1102.5 claim, and I don’t see a good answer to it on the current law.
Defense costs and conflicts shrink. A named supervisor usually needs to be defended, sometimes by separate counsel, and sometimes has interests that diverge from the company’s. A prompt motion can take the supervisor out early.
The employer’s reasons still decide the case. Because section 1102.6 puts the clear-and-convincing burden on the employer, the documents that explain each decision matter more than who is named in the caption.
Two more rulings in the opinion are worth an employer’s attention. In deciding which acts could support the claim, the court held that two requests for a doctor’s note, a single comment about wearing a mask incorrectly, and an employee counseling record with no alleged consequence were not adverse employment actions. It described the doctor’s-note requests and the mask comment as “trivial.” But the court also held that a jury could find a constructive discharge where the employer fired the employee, was reversed, obstructed her work when she returned, fired her again, and then rescinded the second firing. Reinstating someone doesn’t end the risk if the same conduct starts again.
A caution: the plaintiff here was a state employee, and much of the opinion deals with the Government Claims Act and the State Personnel Board, which don’t apply to private employers. The supervisor-liability holding doesn’t depend on any of that.
Is this the final word?
Not yet. It’s one published Court of Appeal opinion. Under California Rules of Court, rule 8.264, a civil decision becomes final in the Court of Appeal 30 days after filing, and rule 8.500(e) gives a party 10 days after that to petition the Supreme Court of California for review. The Supreme Court can also order review on its own motion for a period after finality under rule 8.512(c).
What should an employer do when a retaliation claim names a supervisor?
The opinion helps most if the company moves quickly after the complaint arrives:
- Put a litigation hold on the supervisor’s emails and texts, along with the personnel file, the discipline records, and every version of the policies the decisions discussed.
- Check the service dates and the response deadline for every defendant, the arbitration agreement if there is one, and the notice terms in any employment practices liability (EPLI) policy.
- Decide early whether the company will defend the supervisor and whether the supervisor needs separate counsel, and make sure nobody takes further action against the employee that could look like more retaliation.
- Pull the documents that show the legitimate reason for each decision the employee challenges, because section 1102.6 makes that the employer’s burden.
- Talk to a lawyer before responding, before contacting the employee or the employee’s lawyer, and before offering anything to settle.
The firm’s California employment defense lawyers page covers retaliation claims, wage disputes, and arbitration agreements in more detail.
Questions employers ask about supervisor liability
Can an employee still sue a supervisor for whistleblower retaliation under another law?
Possibly. Chaudhry decides section 1102.5 only. For public employers, the Whistleblower Protection Act lets a state employee seek damages from “any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee,” after first filing with the State Personnel Board. FEHA also makes an employee personally liable for harassment the employee commits. Read the complaint against the specific statute it cites, because the answer differs from claim to claim.
Does Chaudhry apply to private employers?
Yes. The plaintiff worked for the State, but the holding interprets section 1102.5, which applies to private employers too. The parts of the opinion about the Government Claims Act and the State Personnel Board are specific to public employment.
Should we ask the court to dismiss the supervisor right away?
Usually it’s worth raising early. In state court that means a demurrer or a motion for judgment on the pleadings. In federal court it means arguing fraudulent joinder in the notice of removal and in opposing any motion to remand. The right vehicle depends on the forum, the other claims pleaded, and whether a harassment claim names the same person.
If an employee’s lawyer has named your managers
If a former employee has sued your company and its supervisors for whistleblower retaliation, the timeline of each decision and the reasons documented at the time usually decide the case. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving whistleblower retaliation. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The decision is Chaudhry v. State of California (Sept. 28, 2026, A173501), Court of Appeal, First Appellate District, Division Four, certified for publication. The statutes are Labor Code section 1102.5, Labor Code section 1102.6, and Government Code section 12940. The finality and review rules are California Rules of Court, rule 8.264 and rule 8.500, and review on the court’s own motion is in rule 8.512. The Whistleblower Protection Act provision is Government Code section 8547.8.
This post is general information about California and federal employment law as of November 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.