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Whistleblowing #13
by Ross Runkel at LawMemo
A employee-whistleblower is an employee who reports (usually to a government agency) the illegal activities of the employer or of another employee.
Increasingly, the law protects employee-whistleblowers from retaliation from their employers.
Definition: The definition of a whistleblower has two important parts:
1 - There has to be a report or a complaint.
The law will give its maximum protection when the report is made to a government agency (anything from the police to OSHA), especially if the report is made to the agency that has some jurisdiction over the illegal activity.
What if the report or complaint is "internal," that is, made inside the employer's organization to the supervisor, manager, president, or board of directors? Sometimes this is not protected activity, and will depend on exactly which law is involved.
2 - Does there actually have to illegal activity?
What if the whistleblower thought the activity was illegal when actually it was not? Usually, the law gives the employee protection if she (1) actually believed the activity was illegal and (2) that belief was reasonable.
What protection does the employee get?
Assuming a whistleblowing law applies, the employer will be barred from retaliating against the employee because she made the report. That means the employer cannot punish the employee by discharging her, demoting her, or otherwise substantially changing her working conditions.
Laws to look for. (1) Many statutes (state and federal) have specific protections for employees who report illegal activities to specific government agencies. (2) In many states, whistleblowers are protected by the tort of "wrongful discharge in violation of public policy." (3) For public sector employees, the first amendment sometimes protects against retaliation for speaking out on what lawyers call "matters of public concern."
Are there financial rewards for being a whistleblower? Usually no. Usually the employee gets no more than protection against retaliation.
There is a specialized lawsuit called a qui tam action. If the employer has been defrauding the federal government, this lawsuit allows the employee to sue in the name of the government to try to recover the ill-gotten gains. The employee who wins such a suit is entitled to a percentage of the amount recovered.
Coming next: Discrimination #14: Employment Law 101
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