State Whistleblower FAQ

Each state is different. However, state courts were the first body of government to step up and start protecting whistleblowers. The first modern breakthrough for whistleblowers was in 1959 when the state courts of California recognized a “public policy exception” to the “at-will” doctrine following Petermann v. International Brotherhood of Teamster .

Prior to 1959, state courts had interpreted the common law of contracts as permitting any employer to fire any employee for any reason, or no reason. This was known as the “at-will” doctrine. There had not been recognized employment rights under common law. However, starting in California in 1959, courts started to carve-out an exception to that doctrine. Under the “public policy exception,” an employer could fire an employee for any reason, but not a reason that violated public policy. Whistleblowing was recognized as a key public policy for which the courts would protect.

Examples of the “public policy exception” include barring an employer from terminating an employee for filing a worker’s compensation claim after being injured on the job or terminating an employee for refusing to break the law.

After 1959, nearly every state in the United States followed California and slowly started to adopt the “public policy” exception. But every state has issued its own interpretation of what constitutes as a “public policy,” and what types of remedies an employee can obtain if they prevail in a case.

Public policies can be found in most state’s constitutions, statues, or administrative rules. However, some states have either restricted or expanded the doctrine beyond this. The public-policy exception in California for example, recognized that “the perjury and the solicitation of perjury were criminal offenses and that false testimony in any official proceeding hindered the proper administration of both public affairs and justice,” according to the U.S. Bureau of Labor Statistics.

Rule 5 in The New Whistleblower’s Handbook outlines the current status of these numerous judicial decisions, and explains the different approaches taken by each state. Also, we have provided an on-line resource looking at each state. Because these rights are judicially created, it is important to always check the most recent decisions from the state courts for which you may file a common law claim.

Yes. Most states have now passed whistleblower protection legislation. However, these laws are scattered and follow no pattern. Some states only have laws protecting government workers. Others protect private sector workers, while others protect both. The remedies and definitions of a protected disclosure are widely diverse, as are the filing requirements. It is highly recommended that a whistleblower carefully reviews any state laws that may be applicable when weighing whether or not to use state remedies to protect him or herself.

A growing number of states have enacted False Claims Act qui tam statute modeled on the federal law. These state qui tam are extremely important and can offer some of the best whistleblower protections at a state level.

The state False Claims Act/ qui tam laws generally concern misuse of state and local government monies. The State of New York also permits tax fraud cases to be filed as part of a qui tam . Because so many federal programs have joint federal and state funding, the U.S. Congress has amended the federal False Claims Act to make it easy to joint federal and state claims in one lawsuit.

Yes. Under federal law it is possible to join state claims with a federal lawsuit. For example, state and local government employees are protected under the federal U.S. Constitution’s First Amendment and the federal Civil Rights Act of 1871, 42 U.S.C. § 1983. It is common to join a state statutory and common law claim with a federal constitutional claim. In the private sector, state common law claims are often joined with federal statutory claims. As explained above, qui tam cases are often jointly filed under state and federal law.

Rule 5 of The New Whistleblower’s Handbook covers these matters. Also, there are online resources, some of which are linked here. But ultimately, before filing a state case, a whistleblower must independently determine the status of those laws under the most recent case law and determine whether or not these laws should be used.

If you need additional help or want to contact an attorney, please fill out a confidential intake form. To learn more about how NWC assists whistleblowers, please visit our Find an Attorney page.

For additional information on the state whistleblower laws, please read Rule 5 and Checklist 3 published in The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself (Lyons Press, 2017).