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What whistleblowing is, and some info about protection against retaliation
UPDATE is coming due to new MO Supreme Court Cases — See this quick and dirty summary Margiotti - Pepose - Keveney
(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,
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