California courts have long wrestled with what happens when a whistleblower proves retaliation was a factor in an adverse employment decision, but the employer also proves it would have made the same decision for legitimate reasons. In a new published decision, Lampkin v. County of Los Angeles (2025) 112 Cal.App.5th 920, the Court of Appeal gave employers welcome clarity—especially on the question of attorney’s fees. The court confirmed that under Labor Code § 1102.6, if the employer establishes the same-decision defense, no relief truly means no fees. The employee recovers nothing—no damages, no equitable remedies, and no attorney’s fees or costs.

What is the Same-Decision Defense?

The same-decision defense (sometimes called the mixed-motive defense) allows an employer to avoid liability if it proves by clear and convincing evidence that it would have taken the same action even without the employee’s whistleblowing.

For example, imagine an employee reports suspected misconduct. Weeks later, she is fired. A jury might find that her report was one reason for the firing—but if the employer can show it had already documented poor performance, repeated policy violations, and final warnings, then the firing would have happened anyway. If the jury agrees, the employer wins under the same-decision defense.

What Happened in Lampkin

Deputy Sheriff D’Andre Lampkin claimed Los Angeles County retaliated against him for whistleblowing. A jury agreed that his whistleblowing was a factor—but also found the County would have made the same decisions regardless, for legitimate reasons.

That meant Lampkin received no damages. Still, the trial court awarded him more than $450,000 in attorney’s fees and costs, relying on a discrimination case, Harris v. City of Santa Monica (2013). Harris held that under FEHA, even when an employer proves the same-decision defense, a plaintiff may still be considered “successful” and obtain limited remedies and attorney’s fees, because FEHA was designed to encourage broad enforcement of anti-discrimination laws.

On appeal, the Court of Appeal drew a sharp line between California’s whistleblower law in Labor Code §§ 1102.5 and 1102.6 and the state’s discrimination law (FEHA). Labor Code § 1102.5 protects employees from retaliation, while Labor Code § 1102.6 sets out the rules for proving these cases. Crucially, § 1102.6 gives employers a powerful defense: if they can show they would have made the same decision for legitimate reasons, they’re off the hook entirely—even for attorney’s fees. That’s exactly what happened to Lampkin. Since he walked away with nothing, the court said his case wasn’t a “successful action” under the whistleblower law—no damages, no remedies, and, most importantly, no attorney’s fees.

What Lampkin changed is clarity: before, it wasn’t entirely clear whether a plaintiff who proved retaliation played a role but lost on the same-decision defense could still collect fees. Now we know the answer—under Labor Code §§ 1102.5 and 1102.6, no relief means no fees.

Why This Matters for Employers

• Stronger Defense Tool: Employers now have clear authority that the same-decision defense is a complete shield in whistleblower cases. With proper documentation, it doesn’t just block damages—it eliminates exposure to attorney’s fees.
• Settlement Leverage: Plaintiffs’ lawyers often push settlement based on the risk of fee awards. Lampkin removes that pressure when the same-decision defense applies, shifting leverage back to the employer.
• Risk Assessment: Defense counsel can now reframe case value. If the same-decision defense is strong, plaintiffs cannot be deemed “successful” and cannot recover fees, which dramatically lowers exposure.

Takeaway for Employers

The Lampkin decision is a significant win for employers. It clarifies how Labor Code §§ 1102.5 and 1102.6 work together: § 1102.5 provides the whistleblower protection, while § 1102.6 makes the same-decision defense a complete bar. If the employer proves it would have made the same decision for legitimate reasons, the case ends there—no damages, no remedies, and no attorney’s fees.

The lesson is clear: keep thorough documentation, be consistent in applying workplace rules, and ensure legitimate reasons for employment decisions are well-supported. That record may not only defeat damages but, thanks to Lampkin, prevent costly fee awards altogether.

If you have any questions or would like to discuss this topic further, please contact Alexandra “Lexi” Sennet at asennet@tresslerllp.com.

About the Author

Alexandra “Lexi” Sennet is an associate attorney in the Litigation, Employment, and Transportation and Aviation Practice Groups in Tressler’s Los Angeles, CA office. Lexi focuses her practice on defending claims involving wrongful death, personal injury, and property damage. She assists in cases involving employment litigation, premises liability, aviation accidents, motor vehicle incidents, product liability, and complex healthcare-related litigation. Click here to read Lexi’s full attorney bio.