WHISTLEBLOWERS

What whistleblowing is, and some info about protection against retaliation

(NOTE: See my articles on retaliation and wrongful termination for additional general information about whistleblower-related legal rights and remedies. If you are considering engaging in a form of whistleblowing, consider seeing a lawyer first to learn about what protections you might have against retaliation. Whistleblower protections are often far less extensive than you would think. It could be risky for you to assume that you will be protected against retaliation. If you are not sure, consider seeing a lawyer and learning what protections might apply in your specific situation. Unfortunately, for some types of whistleblowing there may not be any meaningful protection against retaliation.)

What is a whistleblower, for employment law purposes?

The term “whistleblower” has many meanings in different contexts. We’re all familiar with the dramatic type of whistleblowing where an employee contacts the Feds secretly and reveals that the company is engaged in illegal activity. But there are many other types of conduct which employment lawyers might refer to as forms of “whistleblowing.” My Retaliation article tries to introduce you to many of the more common types of conduct that might fall into the whistleblowing category (depending on the circumstances).

Certain laws provide protection against retaliation for those who report violations of laws, or participate in investigations or serve as witnesses in particular types of cases. Those activities are really at the core of what lawyers are thinking about when they talk about whistleblower protections. Whistleblowing can consist of reporting crimes or fraud (or possibly unethical conduct) to government agencies (or even sometimes to the company’s management). Also, whistleblowing can consist of serving as a witness in many different types of cases, or assisting in investigations of many different types. BUT NOT ALL WHISTLEBLOWING-TYPE ACTIVITY IS PROTECTED FROM RETALIATION. It gets very complicated. See a lawyer right away if you think you are being retaliated against.

What employment protections apply to whistleblowers?

Those persons who engage in some form of important whistleblowing have engaged in conduct that gives them legal protection against retaliation. The protection against retaliation is the most important work-place right that whistleblowing gives you. If you blew the whistle on something, but didn’t get retaliated against, then you probably wouldn’t be reading this anyway. See my article on Retaliation for a more detailed discussion of this concept, where I talk about the many types of “protected activity” (such as forms of whistleblowing and many other activities) that could give you legal rights if you engage in the activity and the employer retaliates against you.

Whistleblower protection might apply (it depends on the law) even if you were not fired in retaliation for the whistleblowing, but you have been significantly mistreated in the terms and conditions of your employment. If you have engaged in whistleblowing (see below) and are being retaliated against in any way, consider calling a lawyer.

You might have protection against retaliation whether or not a special law has been written that expressly makes retaliation illegal for the type of whistleblowing you engaged in. In Missouri, if you are fired for certain types of whistleblowing-related activity, the court will let you sue for wrongful termination whether or not a special law makes the retaliation explicitly illegal. The court will decide case-by-case whether the type of whistleblowing was “important enough” in the eyes of the court to permit you to sue for the wrongful termination. For example, there is no written law in Missouri that expressly provides that if you report theft to the company’s management you are protected against retaliation. Despite the absence of such a law, the court still will probably let you sue for wrongful termination if you get retaliated against for reporting serious-enough theft. If you report to management that someone in the company has committed felony theft from the company, you might have a wrongful termination claim if you are retaliated against. But you might not have a wrongful termination claim if you report theft that falls into the misdemeanor category. It’s case by case.

There are many laws, both Federal and Missouri, that expressly provide for whistleblower protection of some type. I cannot list them all here, because I do not even know them all. I know many of the explicit whistleblower protection laws, but I’m still surprised when I come across ones I haven’t seen before.

Here’s how I sometimes learn about whistleblower protection laws that I did not previously know existed: I talk to a potential client and question them about whether they engaged in any “protected activity” such as I list in my Retaliation article. For example, if the person reported any illegal or unethical activity, or refused to do something that they considered illegal or unethical, or served as a witness or assisted in an investigation, then I do legal research. I look for laws and court decisions that talk about the industry in which the person worked, or that talk about subjects similar to the subject matter of the investigation in which the person participated, etc. Sometimes, I will find a special provision of law, or a court decision, that grants legal protections to persons such as the potential client.

A general guideline: If you work in an industry that is regulated by the government and you report a violation of a significant rule governing your industry, or refuse to violate a significant such rule, and you get retaliated against, then you should suspect that a whistleblower law may exist that provides you with special legal rights.

Another general guideline: If there is no specific law that protects you against retaliation for your type of whistleblowing activity, then you will probably have to proceed under a theory called “public policy discharge,” which is a very difficult legal theory to prove in Missouri. I talk a bit about one of the major problems with the public policy theory, a problem which we call “exclusive causality,” in the body of my article on workers comp retaliation, here.

Another general guideline: Act fast. Where a special law has been written to specifically give rights to a particular type of whistleblower, the law may specify a detailed set of procedures that you must follow in order to fully preserve your rights. Sometimes, when special whistleblower protection is provided for in a law, the special protection wipes out your right to claim “public policy discharge” (and sometimes it doesn’t). It gets very complicated.

A bunch of whistleblower-type laws are on the books,
and I hope to write about some more of them soon.

There are specific whistleblower-type provisions in most of the common employment laws. Such provisions protect employees against retaliation for reporting violations of the laws or complaining to management about possible violations, or giving evidence in connection with investigations under such laws. A few examples: Discrimination laws (see my Discrimination article for more info); Wage and Hour laws (see my Overtime article for more info); Safety laws such as OSHA laws (see my Safety article for more info); Family and Medical Leave Act (see my FMLA article for more info).

Remember these things in particular: Whistleblower-type protection might exist to protect you against retaliation whenever you report illegal activity to the proper authorities or to your company’s management, or you refuse to engage in illegal or unethical activity. AND, the more your industry is regulated by the government the more likely it is that you enjoy protection against retaliation. But it’s all case-by-case, and you might not be protected in your specific circumstances. Even if you are protected, you might have to follow detailed procedures - with short deadlines - in order to get any justice for the retaliation.

For Missouri State Government employees, I have critiqued one statute that attempts to provide some protection against retaliation, under limited circumstances, to State Government employees who report mismangement in State Government agencies. See Weak whistleblower protections for state employees in RSMo 105.055, where I deconstruct and criticize the statute, and illustrate how a protective law can be drafted so weakly that the law fails to provide meaningful protections.

It gets complicated. If you think you might need legal advice, you probably do. If you don’t want to call a lawyer, call the government agency that you think is the most likely candidate to administer the most likely set of laws that might apply to your situation. That’s very often the U.S. Department of Labor or the Equal Employment Opportunity Commission.

Discussion of two recent important whistleblower-related developments,
regarding Accounting and Securities Industry Whistleblowing and
Air Carrier Safety Whistleblowing.

Accounting and Securities-related Whistleblowing:

New Whistleblower protection: On about July 30, 2002 President Bush signed the Sarbanes-Oxley Act of 2002 [H.R. 3673], to update the securities laws due to the recent accounting scandals in the news. Sarbanes-Oxley contains a very weak anti-retaliation provision for whistleblowers who complain of accounting or securities violations or assist in official investigations. TRAPS: the statute of limitations is ONLY 90 DAYS to file charges with the Department of Labor, and no punitive damages are allowed.

Here’s a link to the full text to the Sarbanes-Oxley Act of 2002.

Here’s my page about the whistleblower provisions of Title VIII of Sarbanes-Oxley.

One good thing about Sarbanes-Oxley for whistleblowers is that the law does not wipe out any state law whistleblower protections. The law expressly preserves employees’ rights under state laws. For example, some states have found that accountants have wrongful termination claims for reporting violations of Accountants Codes of Ethics or refusing to violate the code of ethics. It could have been worst for employees: When Congress passed a special airline whistleblower law, our 8th Circuit Court of Appeals found that it wiped out state wrongful termination protections for airline industry-related whistleblowing. See below.

Air-carrier industry whistleblowers lose all state-law
wrongful termination rights, but gain some weak
Federal whistleblower rights if they file complaints with the
Department of Labor within 90 days of the retaliation

Federal Aviation Admin Whistleblower pages. See the “Public Law” link on the page. SUMMARY of the linked law, 49 USC 42121 (Air Carrier Whistleblower Protection): Air carrier employees who report violations of any air carrier safety regulations to the employer or to investigators must complain to the Department of Labor within 90 days of getting retaliated against. The retaliation can be any Adverse Employment Action that substantially affects the compensation, terms conditions or privileges of employment. The employee must prove that his reporting was a contributing factor in the Adverse Employment Action. The employer can defend by proving with clear and convincing evidence that it would have taken the same adverse action anyway for other reasons. The Department of Labor will within 120 days issue an order granting relief or denying the complaint. Appeal is to the Court of Appeals directly. Damages can be reinstatement with backpay plus compensatory damages and attorney fees. The Department of Labor can issue a fine of $1,000 for filing a frivolous complaint. There is no private right to sue, except that if the Department issues an award to the employee and the employer refuses to comply then the employee can sue to enforce the order. See also FAA Whistleblower FAQ

Our Federal Court of Appeals says that 42 USC 42121 takes away
state-based safety whistleblower protections :

The Eighth Circuit Court of Appeals ruled in April 2002 that air-carrier safety whistleblowers NO LONGER HAVE wrongful termination actions under state law, but instead ONLY have rights under 49 USC 42121, with its short 90 day deadline to file charges with the Department of Labor. See Botz v. Omni, 286 F.3d 488 (8th Cir. 2002) (PDF file opens in new window). Botz v. Omni says that state laws are pre-empted by the new federal air carrier whistleblower law, in combination with the Airline Deregulation Act. Until Botz v. Omni, Missouri residents used to have a 5 year statute of limitations to sue for wrongful termination for air-carrier safety related whistleblowing, under the Public Policy Discharge theory, and could seek punitive damages But those rights seem to be gone now, according to the Eighth Circuit, and have been replaced by the 90 day statute of limitations period of 42 USC 42121 without punitive damages or the right to sue. Why would Congress want to so severely weaken whistleblower protections for reporting airline safety problems?