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Whistleblower: Be careful where you blow
February 12, 2006 by Ross Runkel at LawMemo
Is a whistleblower protected from retaliation if she blew the whistle inside the employer's organization, or blew it to the wrong individual or government agency?
As general rule, an employee-whistleblower is more likely to have statutory protection if she
- reports wrongdoing to a government agency rather than merely reports it to someone within the employer's organization.
- reports wrongdoing to the "correct" individual or government agency, that is, the individual or agency that is in a position to correct the wrongdoing.
Recent examples:
- The risk manager of a bank wrote some critical memos and delivered them to the bank's board of directors, audit committee, and upper management. The bank discharged the manager, and he sued claiming retaliation under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) as amended by the Federal Deposit Insurance Corporation Improvement Act (FDICIA). That statute protects disclosures to "any Federal banking agency or to the Attorney General."
The 11th Circuit held that this does not protect employees who make only internal reports to their own banks. Even though it was inevitable that the memos would come to the attention of one of the banking agencies mentioned in the statute, that was not enough to provide protection to the employee. Lippert v. Community Bank (11th Cir 02/08/2006).
(Other statutes do protect employees who engage in internal whistleblowing. It all depends on what the statute says.)
- An employee of a state-owned facility thought there were some financially improper transactions taking place. He reported these transactions to other government employees. The problem was that the alleged wrongdoing was being done by people who were the superiors to the persons he made the reports to. Therefore, the court held that he was not making a report to somebody who was in a position to correct the alleged wrongdoing. As a result, his activity was not protected by the Maryland Whistleblower Statute. Dept of Natural Resources v. Heller (Maryland Ct App 02/09/2006). (The Maryland court split 4-3 on this issue.)
I discuss whistleblowing in general as part of the "Employment Law 101" series: Whistleblowing #13.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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