On Whistleblowing

Whistleblowing & Wrongful Discharge

When a discharge violate whistleblower protections.

Background

Most states’ courts explicitly recognize the “right to work” principle in employment law. Generally speaking, that principle is shorthand that guides courts’ decisions in a variety of employment disputes. The disputes may range from the right of a former employee to compete against a former employer to the right of an employer to terminate an employee for any reason or for no reason at all.

When applied to the rights of employers and employees to terminate their relationships, the principle is often referred to as “at will” employment: the employer may hire or fire “at will” and the employee may resign “at will.”

The “right to work” principle and the corollary doctrine of “at will” employment may be modified by contract between the parties. For example, many states recognize that an employer may enforce a “non-compete” agreement that prohibits a former employee from going after the employer’s customers or even from working in a defined territory. (The allowable scope and viability of non-compete agreements varies widely from state to state even among those states that recognize such contracts.) Similarly, executive employment contracts may specify that employment is for a particular term. (Typically such contracts may also contain provisions allowing for early termination on certain grounds and include “liquidated damages” clauses spelling out what consequences follow depending on who ends the relationship and for what reasons.)

The “right to work” principle and the corollary doctrine of “at will” employment have also been modified by statutes that limit the rights of employers to terminate employees for any reason by making some reasons (such as race, sex, age, and national origin) illegal.

Finally, even absent statute, some courts have, in particular cases, modified the employment at will doctrine to serve important public policies that would be frustrated if the doctrine was strictly applied in those cases.

Statutory modifications of the employment at will doctrine are (for reasons this note will not explore) sometimes “strictly construed.” This means that courts decline to enforce a statutory prohibition beyond the literal meaning of the statutory scheme. At other times (or jurisdictions) statutes may be “broadly construed,” meaning that courts will apply statutory objectives to activity not within the literal narrow words of the statute.

Sometimes strict construction has led to results that seem illogical. For example, a court might decide that an employer that broke the law and defrauded the government (and is liable for that fraud) has the right under the at-will doctrine to fire an employee because he reported the fraud. The concept of “whistleblower” protection arose in response to such situations.

Whistleblowing

Currently, then, some statutes –actually there are currently over 50 separate federal laws– protect employees against adverse actions by their employers on account of the employee’s actions in revealing fraud or in asserting statutory rights. Typically these statutes identify a kind of activity the reporting of which is protected and a class of individual who is protected.

  • For example, Title VII of the Civil Rights Act, which prohibits discrimination on account of race, religion, sex, national origin, etc., protects employees and applicants for employment against “retaliation” on account of such individuals’ asserting that the employer violated the statute.
  • The False Claims Act, 31 U.S.C. 3730(h), entitles whistleblowing employees who are “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of his employer or others…, including investigation for, initiation of, testimony for, or assistance in an action filed…” to twice their back pay, reinstatement, interest and attorneys fees.
  • Similarly, the federal Whistleblower Protection Act of 1989 protects federal employees, former employees, and applicants for employment who claim that they have been subjected to personnel actions because of their whistleblowing activities, which extends to such specific matters as complaints of fraud and abuse.

Similar laws have been enacted in most states. (See., e.g., Whistleblower Reinforcement Act of 1998 D.C. Code § 1-602.01, et seq.) Sometimes these statutory schemes require a complainant to use an administrative remedy before going to court and sometimes they require the complainant to chose between different forums to decide the complaint. Sometimes the “window” in which a proper whistleblowing complaint may be lodged is very short; as little as 30 days from the dat eof the alleged retailiation.

Where no statute explicitly protects employees, courts have sometimes recognized a common law protection based on public policy. This “public policy” exception to “employment at will” varies from state to state; what may be (or is) a violation of public policy in one jurisdiction may not be (or is not) in another.

Although courts recognize common-law protections for whistleblowers, the exception to the at-will doctrine is usually characterized by the courts as “very narrow.” (See, e.g., Carl. v. Children’s Hospital, 702 A.2d 159 (D.C. App. 1997).) Unless a particular activity is one previously recognized as protected by a court of the jurisdiction in which a claim might be filed, the claimant faces a long and hard road in establishing a right to relief.

  • Typically, the public policy whose enforcement impels a court to recognize a “whistleblower claim” must be clear and of sufficient importance to merit recognition against the competing public policies of freedom of employers to hire and fire for any reason and of separation of powers, under which legislatures enact laws and courts interpret and apply them.
  • Sometimes the existence of a statute covering some activities is viewed by the courts as precluding recognition of a claim covering related activities. In these instances, the courts have said that the legislature has spoken regarding what it wishes to see protected and, by implication, has excluded other activities from protection.
  • Sometimes a statute applies only to one class of employers and not another. For example, there are a number of cases that hold that a state government employer defendant to a whistleblower claim is exempt from federal whistleblower claims on the basis of sovereign immunity.

Because the viability of whistleblower claims is so dependent on the laws of the jurisdiction in which the claim is brought, the right whose advancement would be frustrated if such claims were not recognized, the facts underlying specific claims, and the procedural prerequisites for bringing such claims to court – all of which factors require the consideration of experienced counsel knowledgeable about local jurisdictional rules and the problems of proof – this note only addresses the typical proofs required of a viable whistleblower claim. Readers are cautioned that an assessment of whether a given claim is viable should not be made in reliance on this note, but rather requires independent assessment by a knowledgeable counsel.

Generally speaking, in order to establish a whistleblower claim, a plaintiff must establish: (1) the employee engaged in a protected activity; (2) the employer defendant knew of the protected activity; (3) the adverse action under review could, under the circumstances, have been retaliation; 4) there was genuine nexus between the alleged retaliation and the adverse action. Each of the terms contained in this deceptively simple statement indicate areas where disputes will arise regarding particular potential claims.

For a more detailed chart of the elements of proof for whistleblowing claims and defenses to such claims see Whistleblowing Checklists.

Conclusion

Whether an adverse employment action violates whistleblower protection is heavily dependant on the facts of a particular potential claim and on the laws of the jursdiction in which the claim may be brought. Employees and employers facing potential whistleblower claims should consult with counsel at the earliest possible time to secure knowledgeable judgments about their claims and exposure.

Additional References

By Eric-Eisen

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Published .

Posted in: Employment Law

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