The first step in reviewing a whistleblower claim is to determine what statutes or common law actions may provide a remedy. A case may be covered under more than one whistleblower protection provision. Depending upon whom one works for and in which state one is employed, the nature and scope of whistleblower protection are varied. In addition to explicit whistleblower protection laws, employees may also be protected under traditional tort or contract for damages resulting from retaliation for whistleblowing. The National Whistleblower Center has released a comprehensive publication of all Federal whistleblower laws and regulations. Click here for more information on this and other NWC publications.
The underlying purpose of whistleblower protection laws is to allow employees to stop, report, or testify about employer actions that are illegal, unhealthy, or violate specific public policies. However, one of the most hotly contested issues in whistleblower law is the exact definition of protected whistleblower activity. Some states have very narrow definitions while others have definitions that are very broad. An employee or his or her attorney should thoroughly research the state law regarding the definition for his or her state.
One major weakness in many statutory whistleblower protection laws is the short statute of limitations for whistleblower cases. Failure to comply with a statute of limitations is one of the favorite defenses in whistleblower cases. The statute is generally considered to start from the time an employee learns that he or she will be retaliated against- not the last day of employment. Each state has its own statute of limitations for common law wrongful termination actions. Federal statutes protecting whistleblowers also have their own statutes of limitations, some as short as 30 days.
The decision on how to pursue the claim will determine what statute of limitations is applicable, the types of damages that are recoverable, and in what forum the claim will be adjudicated. In some states, if the employee is covered by a federal statute, the employee may be preempted from bringing a state action. Some employees have filed for both administrative and common law remedies. Although this approach has been successful, it raises other issues besides preemption, such as res judicata and collateral estoppel. The employee should use extreme care in determining the pros and cons of each potential strategy.
The following elements are the basic components of most whistleblower protection claims:
- that the plaintiff is an employee or person covered under the specific statutory or common law relied upon for action;
- that the defendant is an employer or person covered under the specific statutory or common law relied upon for the action;
- that the plaintiff engaged in protected whistleblower activity;
- that the defendant knew or had knowledge that the plaintiff engaged in such activity;
- that retaliation against the employee was motivated, at least in part, by the employee’s engaging in protected activity;
- that plaintiff was discharged or otherwise discriminated against with respect to his or her compensation, terms, conditions or privileges or employment; or suffered some other wrong actionable under state tort or contract theory;
- that the plaintiff can demonstrate, by a preponderance of the evidence, that he or she would not have been subject to an adverse action in the absence of their protected whistleblower conduct.
The following general categories of facts or circumstances are used to establish a reasonable inference that the discharge was discriminatory:
- employer's hostile attitude toward matter underlying employee's protected conduct;
- employer's knowledge of protected conduct;
- nature of protected conduct;
- special conditions of employment following protected conduct and leading up to discharge;
- disparate treatment of discharged employee prior to protected conduct;
- previous expressions of satisfaction with work record;
- disparate treatment of similarly situated employees;
- termination procedure;
- timing of discharge;
- threats or retaliation against other employees for similar conduct.
Other factors that have been used successfully to establish circumstantial evidence of discriminatory motive are:
- high work performance ratings prior to engaging in protected activity, and low ratings or "problems" thereafter;
- manner in which the employee was informed of his or her transfer or termination;
- inadequate investigation of the charge against the employee;
- discipline, transfer, or termination shortly after employee engaged in protected activity;
- the magnitude of the alleged offense;
- absence of previous complaints against employee;
- differences in the way complainant and other employees were treated;
- determination that the employee was not guilty of violating work rule charged under;
- charges of "disloyalty" against an employee for engaging in protected activity.
These issues and others are discussed in greater detail in The New Whistleblower's Handbook: A Step-by-Step Guide to Doing What's Right and Protecting Yourself. This guide is the new 2017 edition of the first-ever consumer's guide to whistleblowing. It contains thirty clear and comprehensive rules that fully explain the how to effectively blow the whistle. Review this resource in order to determine what laws may protect you and whether you need to take immediate action to protect your rights. Donate now to get your copyor order directly from the NWC Book Store If you are a whistleblower seeking legal representation, please fill out the Report form.