1 (VoL. 4:73 vould emasculate the ethod of stopping the : their harassment or fety. 'otecting internal dis- ~ the worker is in the 'ifth Circuit's narrow is repugnant to this :uits' caselaw. From such statutes is neces- Philips, which explicternal complaints, the ig management interrs a possible violation. ling the protections of ernal dissent is desirame. The NRC explic- : violations to contact actions to administrathe internal dissenter. oat reasoning prevails, plaints wil be chiled; an industry that, as s'afety. :d unprotected conduct. ie discharged (employee) not occurred. ciling I'JI.,Ilv and also contacts the NRC. the basis that the employee was )arently exists under Brown and AN OVERVIEW OF FEDERAL AND STATE WHISTLEBLOWER PROTECTIONS STEPHEN M. KOHN* AND MICHAEL D. KOHN** i. INTRODUCTION The protection of employee whistleblowers is a controversial and developing area within employment discrimination law. There is no comprehensive law which prohibits employers from retaliating against employees who disclose potential corporate or governmental violations of law, or practices which may violate environmental standards or threaten the health and safety of employees and the public. Instead, over the past twenty-five years there has been a steady growth in common law and specific statutory protections for employee whistleblowers. Although the creation of numerous federal and state remedies for whistleblowers has enhanced the rights and ability of employees to disclose employer violations of law and public policy, the patchwork nature of the remedies has hindered aggressive litigation and enforcement of whistleblower protection provisions. For example, only employees who engage in certain specific whistleblower conduct in certain specifically protected industries are covered under federal law. Each federal whistleblower statute has its own fiing provisions, its own statute of limitations, and its own administrative or judicial remedies. Likewise, some states provide broad protection for employee whistleblowers under state common law, some provide no such protection, others provide narrow or limited protection, while others stil have not even addressed the issue. Thus, each potential whistleblower case must be evaluated on the basis of who the employer is, what the disclosure concerned, and in which state the whistleblowing occurred. On the basis of these variables, an attorney must review federal and state law to determine if the employee is protected and exactly what procedures should be followed in filing a claim for redress. i J.D Northeastern University; M.A Brown University; B.S Boston University. Mr. Kohn is the Clinical Director of the Government Accountability Project and author of PROTECTING ENVIRON~ENTAL AND NCCI.EAR WHISTLE BLOWERS: A LITIGATION MANL\t (Washington. D.C.. Nuclear Information and Resource Service. 1985)... J.D Antioch School of Law; B.S. Rutgers University. The authors would like to express their appreciation to the students of the i Government Accountability Project Student Law Clinic and Nolan ~1atz for their assistance in the research for this article., There is a growing body of case law discussing the relationship between federal statutory and 99.~ -_..,"
2 ANTIOCH LAW JOURNAL SPECIAL FOCUS; WHISTLEBLOWERS AND THE PUBLIC INTEREST htrodi.ction The Han. Patricia Schroeder ARTICLES ABi.SE OF Ai.THORITY: THE OFFICE OF THE SPECIAL COi.NSEL AND WHISTLE BLOWER PROTECTION Thomas.\1. Devine Donald G. Aplin NI..LEAR WHISTLEBLOWER PROTECTION AND THE SCOPE OF PROTECTED ACTIVITY ljnder SECTI01' 210 OF THE ENERGY REORGANIZATIO:, ACT A:- OVERVIEW OF FEDERAL AND STATE WHISTLEBLOWER PROTECTIONS.... Stephen.\1. Kahn Thomas Carpenter... Siephen.\1. Kahn.\lichael D. Kahn VOL. 4 SUMMER 1986
3 ? 100 ANTIOCH LAW JOURNAL (VoL. 4:99 In order to assist attorneys and employee whistleblowers in understanding the maze of laws which may either protect or concern their specific whistleblower activities, this Article wil provide an overview of the various federal and state whistleblower protection laws. First, we wil review the federal constitutional and statutory protections available to whistleblowers. Second, we wil review the status of state common law remedies available to whistleblowers under the public policy exception to the at-wil doctrine. This article is an introduction to the major statutory and common law provisions which concern whistleblower protection. It is not intended to present a comprehensive analysis of all whistleblower laws. An attorney or employee should always carefully review any statutes, regulations, or laws which cover the area of his or her whistleblowing activities for additional implicit or explicit sources of protection. II. FEDERAL PROTECTION Under federal law, there are two sources of authority which protect whistleblowers from employment discrimination: (A) the U.S. Constitution, and (B) specific federal statutes. A. Constitutional Protection Under the first and fourteenth amendments to the U.S. Constitution, state and local governments are prohibited from retaliating against whistleblowers. In 1968 the Supreme Court held that the first amendment protects government employees who express public dissent.2 The first amendment protects employees who blow the whistle either publicly or privately directly to their supervisors.3 Whether any specific exercise of free speech or disclosure of potential wrongdoing are protected under the first amendment depends upon a case-by-case analysis under the rule pronounced in Pickering v. Board of Education: "... absent proof of false statements knowingly or recklessly made... (the) exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment."4 state common law whistleblower actions. See. e.g.. Silkwoo v. Kerr-McGee Corp U.S. 238 (1984); Farmer v. Carpenters, 430 U.S. 290 (1977); Olguin v. Inspiration Consolidated Copper Company, 740 F.2d 1468 (9th Cir. 1984); Garibaldi v. Lucky Foo Stores. Inc., 726 F.2d 1367 (9th Cir. 1984); Walsh v. Consolidated Freightways. Inc., 278 Or. 347, 563 P.2d 1205 (1977); Hentzel v. Singer Co CaL. App. 290 (1982); Stokes v. Bechtel North American Power Corp F. Supp. 732 (N.D. CaL. 1985); Wheeler v. Caterpillar Tractor Co., 108 BUd 502, 485 N.E.2d 372 (1985), ceri. denied, - U.S. -+ (1986). 2 Pickering v. Board of Education, 391 U.S. 563 (1968). (See Appendix A.) J Givhan v. Western Line Consolidated School District. 439 U.S. 410 (1979).. Pickering v. Board of Education, 391 U.S. 563, 574 (1968).,~""'"".-.~.
4 (VoL. 4:99 tleblowers in under- ~ct or concern their )Vide an overview of ion laws. First, we protections available us of state common public policy excep- tutory and common :cion. It is not inistleblower laws. An any statutes, regulastleblowing activities ion. hority which protect \.) the U.S. Constitu- ~ the U.S. Constitum retaliating against :hat the first amendpublic dissent. 2 The ihistle either publicly any specific exercise ~ are protected under ialysis under the rule... absent proof of ( the) exercise of his not furnish the basis.mcgee Corp., 464 U.S. 238 n Consolidated Copper Com- Inc., 726 F.2d 1367 (9th Cir. '.2d 1205 (1977); Hentzel v. m Power Corp., 614 F. Supp. 502,485 N.E.2d 372 (1985),,pendix A.). 410 (1979). 1986) WHISTLEBLOWER OVER VIEW 101 The rights of federal employees under the first amendment were severely restricted by the Supreme Court in Bush v. Lucas.5 Essentially, if an administrative remedy is available to a federal civil servant, the federal employee must utilize that administrative remedy and cannot bring an independent tort action under the first amendment. But if a federal employee is not covered under a federal administrative scheme (i.e., the Federal Civil Service Reform Act), or if the administrative remedy does not cover the retaliation alleged by the employee, the federal whistleblower may be able to use the first amendment as the basis of whistleblower retaliation cause of action.6 B. Statutory Protection Although there is no general federal whistleblower protection act, Congress has passed specific employee protection laws which cover employees, in both the public and private sectors, who blow the whistle on various issues. Each statute generally includes its own definition of what type of speech rights the statute protects, the statute of limitations for filing an action under the law, and its own administrative or judicial rules for adjudication of the claim. The following federal statutes protect whistleblowers: 1. Environmental Laws Employee protection provisions of the Toxic Substances Control Act (TSCA),7 the Superfund,8 the Water Pollution Control Act,9 the Solid Waste Disposal Act,lO the Clean Air Act, i i the Atomic Energy and Energy Reorganization Acts,12 (SDWA) and the Safe Drinking Water Act i 3 contain whistleblower provisions which protect any public or private sector employee who discloses potential violations of these enfironmental laws. The seven laws are all substantially identical and provide for an administrative investigation and hearing within the U.S. Department of Labor. Relief includes reinstatement, back pay, compensatory damages, and attorneys' fees. All of the laws require that a complaint be '462 V.S. 367 (1983). o Bush v. Lucas. 103 S. Ct (1983) (concurring opinion of J. Marshall); Bartel v. Federal Aviation Administration. 725 F.2d (D.C Cir. 1984); Doe v. U.S. Department of Justice, 753 F.2d 1092, n.17 (D.C Cir. 1985); Pope v. Langhorne Bond. et al. Civil Action No (D.C D.C June ) USC (See Appendix B), 42 USC (See Appendix C) Q 33 USC (See Appendix D.) USC (See Appendix L) II 42 USc. ~622. (See Appendix F. ì USc (See Appendix G.) l.' 42 USc. 300j - 9. (See Appendix H.)
5 102 ANTIOCH LAW JOURNAL (VoL. 4:99 discriminatory reprisal. filed with the U.S. Department of Labor within thirty days of the alleged 14 Both the TSCA and SDWA also contain provisions for the award of exemplary damages. i 5 2. Federal Mine Health and Safety Act The Federal Mine Health and Safety Act (FMHSA)16 provides for an administrative remedy for any miner, miner's representative, or applicant for employment in a mine who fies or makes a complaint regarding a potential violation of the FMHSA. Complaints both to management and to governmental authorities are statutorily protected. A complaint must be filed with the U.S. Department of Labor within sixty days of the alleged retaliatory action Fair Labor Standards Act The Fair Labor Standards Act (FLSA)18 contains a whistleblower provision protecting all employees covered under the FLSA from retaliation for complaining, testifying, or filing charges regarding a violation of the FLSA. This includes the FLSA's provision concerning child labor, minimum wage and sex discrimination under the Equal Pay Act.19 A complaint must be filed within two years of when the employee learns about the alleged retaliatory action,20 and may be filed with the U.S. Department of Labor or in federal or state court with competent jurisdiction.21 Remedies include reinstatement, back pay, liquidated damages, appropriate equitable relief, and reasonable attorneys' fees.22 The U.S. Department of Labor has special regulations concerning child labor protection under the FLSA Occupational Safety and Health Act The Occupational Safety and Health Act (OSHA)24 protects employees from any form of retaliation for raising complaints concerning i' See 29 C.F.R. part 24, 29 C.F.R. Part 18. and Stephen M Kohn, PROTECTING ENVIRON- ~lental AND NCClEAR WHisTLEBLOWERs: A LITIGATION M.-\NCAL. Nuclear Information and Resource Service, Washington, D.C. (1 Q85). i' SDWA. 42 USc. 300j - 9(i)(2)(B)(ii); TSCA. 15 USc. 2622(b)(2)(B). '" 30 USc. 815(c) (1977). (See Appendix I.) " See generally. James A. Broderick and Daniel Minahan. Employmeiii Disuiminaúon Under the Federal.\fine Safcty and Healih Act, 84 WEST VIRGINIA L.R (1982). " 29 USc (See Appendix J.) I" 29 USc. 206(d). Oil 29 USc / 'i 29 esc " 29 esc ' 29 C.F.R. Part 579. '" 29 USc. 660(c). (See Appendix K) 1986) workplac to refus, circumsh Emt against f( complain learn of 1 The SOL deti must sue reinstate: 5. Natioi The testify 0 should e tions Bo curred.2' gnevanc action u 6. Surfu Th\ whistlee cause to safety ri ployee l employ\ the veh complai 2" St.t. also reco?' U.S. 9 (I'; 368( 197'l \ 19.l (Ith ( Energy R 2h 2Q I,. 2Q' " Set 588( 1983 i '".lq '".lq ".lq
6 .L (VoL. 4:99 irty days of the alleged WA also contain provi- ~HSA)16 provides for presentative, or applia complaint regarding both to management )tected. A complaint thin sixty days of the WHISTLEBLOWER OVERVIEW workplace health and safety. This has been interpreted to include a right to refuse hazardous work under certain specified and limited circumstances. 25 Employees who believe they have been discriminated or retaliated against for exercising safety and health rights under OSHA must file a complaint with the local OSHA offce within thirty days of the time they learn of the alleged discrimination. The Secretary of Labor (SOL) must investigate the allegation. If the SOL determines that there was a violation under OSHA, the Secretary must sue on behalf of the employee to obtain appropriate relief, including reinstatement and back pay National Labor Relations Act ains a whistleblower ~ FLSA from retalia- :arding a violation of icerning child labor, ::qual Pay Act. 19 A the employee learns ~d with the U.S. Decompetent jurisdicliquidated damages, IS' fees.22 The U.S. ing child labor pro- IA)24 protects emiplaints concerning, PROTECTING E:-VIRON- Nuclear Information and I(B) 'nt Discrimination Under '982). The National Labor Relations Act (NLRA) protects employees who testify or file charges alleging a violation of the NLRA. A complaint should be fied with the Regional Director of the National Labor Relations Board (NLRB) for the region in which the violation allegedly occurred.27 Unions which fail to properly represent whistleblowers in grievance procedures or other union matters may also have a cause of action under the "Duty of Fair Representation" doctrine Surface Transportation Assistance Act The Surface Transportation Assistance Act29 protects employee whistleblowers (generally truck drivers) who file a complaint, testify or cause to be instituted proceeding to enforce a commercial motor vehicle safety rule, regulation, or standard.30 In certain circumstances, an employee has the right to refuse to operate a vehicle if, after contacting the employer, the employee has "reasonable apprehension" that operating the vehicle Would cause "serious injury to himself or the public. "31 A complaint must be filed with the Secretary of Labor within 180 days after " See Whirlpol Corp. v. Marshall. 445 U.S. 1(1980). A right to refuse hazardous work was also recognized in certain speific sitation under NLRA, NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962); Section 502 of the LMRA, Gateway Coal Co. v, United Mine Workers. 414 U.S. 368(1974)); the Fed. Mine Health and Safety Act. Miller v. Fed. Mine Safety Commission, 687 F. 2d 194 (7th Cir. i 982); Section 210 of the Energy Reorganization Act, Pensyl v. Catalytic, Inc Energy Reorganization Act-2. Opinion of Secretary of Labor (Jan. 13, 1984) CF.R Part 1977 n 29 CF.R 102. YO; see 29 USC 158(a)(4) (Appendix L) 2" See, e.g.. Vaca v. Sipes, 386 C.S. 171 (1967); Bowen v. U.S. Postal Service, 103 S. Ct. 588(1983); Ruzicka v. GMC. 523 F.2d 306(6th Cir. 1975) USC (Appendix M.) USC 2305(a) USC 2304b).
7 104 ANTIOCH LAW JOURNAL (VoL. 4:99 the empioyee learns of the alleged discrimioatory act." Remedies under this law include reinstatement, back pay, compensatory damages, and attorneys' fees Longshoreman's and Harbor Worker's Compensation Act The Longshoreman's and Harbor Worker's compensation Act protects employers who either claim protection under the act or who testify io a procding under the act from retaliation. Employers who violate the act are subject to a civil fine" and the empioyee is entitled to reinstatemeot and back pay." A complaint under this section sbould be filed with the U.S. Department of Labor Federal Employees (Civil Service) Federal law prohibits retaliation against federal whistleblowers covered under the Civil Service Reform Act." If a federal employee is not covered under the Civil Service Reform Act, or the form of retaliation is not speificly covered under the act, the federal empioyee may be able to file a tort claim under the first ameodment of the U.S. constitution." Federal employees are also protected by other federal statutes, and ca file claims directly under those laws.39 The most common remedy for federal civil servant whistleblower is the Civil Service Reform Act which prohibits a federal agency from taing an adverse "personoel action" agaiost a civil servant in retaiation for a variety of whistleblowing activities.'" Under the Civil Service Reform Act, ao empioyee alleging ilegal retaliation must file a complaint with )2 49 usc. 2304(c)(I). " 49 U.S.c. 2305(c)(2)(B). J4 33 usc. 948(a). (Appendix N.) J' d. '0 See 20 C.F.R. Ch. VI. Section (1985 Edition). " 5 US.C 2302 (Ap""dis 0) Also,~. sp,,,,1 pmsi'i'o,,0'srio,,mpl',~ io,h, f~"'" service, 22 USc J" Bush v. Lucas. 462 U.S. 367 (1983). " S~.,.,.,h, Cisil Ri,h" Ad of \ U.sC , ", Ag' Di~rimi","'O io Em. plo,m~' Ad. " U.sC 6J",h, hi',-h," S"od"d' Ad. " U.sC 206(d),,h, R,h,hil"""" Ad of 1913." USC 19",h, Ci~o Ai' Ad coo,,~i""'1 hi"~'. \9" U.s Co' Coo, "d Ad Nsw' 1405,,h, W.", Pollo"oo Coo"ol Ad-I. slip opioioo of p'p,om,"' of L.ho' Admioi"'" tive Law Judge, September 12, The Civil Service Reform Act. 5 USc. 2302(b)(8). defines protected activity as: A.. di~i~'" of ioform'''"" bs " rmpl"" ~."ii"", whi,h,h, rmplo," "',,,ii"", reasonable believes evidences- (i) a violation of any law. rule or regulation. '''i mi,m,"",m,",..,m'..," of f,od'. ",h'" of..,ho"". "', so",",o",1 "d 'P"'" d",d 50 p.hli' h~l,h "' ~f", if,,,h d'~i~'" i, ono,,,i'''ii' pmhih"sd hy low "d if,,,h iof ~m' "00 i' ono ''' if" II',sq.i,01 h, E."'"'' osd" 50 Ix.,p',,,50' i 0,h' interest of national defense or the conduct of foreign affairs; or
8 (VoL. 4: ) WHISTLEBLOWER OVERVIEW Remedies under itory damages, and ion Act ipensation Act proie act or who testify ployers who violate ~ is entitled to rein- ::tion should be filed whistleblowers cov- ~ral employee is not arm of retaliation is oyee may be able to U.S. Constitution.38 al statutes, and can ant whistleblower is 'al agency from takant in retaliation for :ivil Service Reform Ie a complaint with either the Merit Systems Protection Board and/or the Offce of Special Counsel depending upon the form of alleged retaliation Employee Retirement Income Security Act (ERISA) It is against federal law to retaliate against any person for participating in an ERISA retirement or benefit plan.42 This includes retaliation against persons who give information or testify concerning ERISA or the Welfare and Pension Plans Disclosure Act.43 A whistleblower complaint under ERISA should be filed in federal district court and a copy of the complaint should be served on the Secretary of Labor and the Secretary of Treasury Surface Mining Control and Reclamation Act This act protects employee whistleblowers who raise an environmental allegation or allege a violation of the Surface Mining Control or Reclamation Act.45 An employee must file a complaint within thirty days to the Department of Interior.46 The law provides for reinstatement, back pay47 and attorneys' fees Exercise of Civil Rights and Free Speech The Civil Rights Act of 187 i 49 prohibits any person from violating, under "color of law," the civil rights of any other person. 50 Whistleblowing is essentially the exercise of a first amendment free speech right. Consequently, where there is state action a whistleblower victimized by retaliation or any other form of discrimination has a potential Civil B. a disclosure to the Special Counsel of the Merit Systems Protection Board, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, or information which the employee or applicant reasonably believes evidences- ng employees in the foreign Age Discrimination in Em.. 206(d); the Rehabilitation '7 U.S. Code Congo and Ad. ment of Labor Administra- 'cted activity as: i the employee or applicant 10rity. or a substantial and iecifically prohibited by law 'der to be kept secret in the (i) a violation of any law. rule, or regulation, or (ii) mismanagement, a gross waste of funds, an abuse of authority. or a substantial and specific danger to public health or safety. 4\ 29 CF.R. Part 1200; see Vaughn. Siaiuiory Proieciion of Whisileblowers in ihe Federal Execulive Branch, 3 U. ILL L.R. 615 (i 982); Devine. Abuse of Authorily: The Offce of ihe Special Counsel and Whisileblower Proteciion. 4 ANTtOCH L.J. 5 (1986).., 29 USc. i 140. (Appendix Pl. 4.\ d esc i 132; see also 29 CF.R. Part , 30 VSC (Appendix Q.) 40 d. 4' 30 CF.R. Part X 30 USC 1293(b) esc i 983. (Appendix R.) '" 42 USC i 98; reads in part. "Every person who. under color of any statute.. subjects or causes to be subjected, an citizen.. to the deprivation of any rights. privileges or immunities secured by the constitution under laws, shall be liable to the party injured in an action at law. suit in equity. or other proper proceeding for redress.
9 106 ANTIOCH LAW JOURNAL (VoL. 4:99 Rights Section 1983 action.5 I Even if there is no state action, whistleblower retaliation which concerns a private conspiracy to retaliate 52 Under the state against an employee may have a valid cause of action. common law public policy exception, even in the absence of state action the exercise of free speech rights might also be protected. 12. Title VII Title VII proscribes employment discrimination on account of race, color, religion, sex and national origin The law contains a or proceeding under Title VII. whistleblower protection provision barring retaliation against any employee who is "opposed" to any practice made ilegal under Title VII, or who files a "charge" or testifies, assists, or participates in an investigation 55 Title VII covers private and public sector employees, labor unions, and employment agencies. 13. Age Discrimination in Employment Act (ADEA) The ADEA protects public and private sector employees from discrimination on the basis of age (over forty, under seventy). 57 The ADEA protects from retaliation all employees who "oppose" practices made unlawful under the ADEA or who were disciplined in retaliation for making a charge, testifying, assisting, or participating in an investigation or proceeding under the ADEA Maritime Employees The U.S. Court of Appeals for the Fifth Circuit recognized that a seaman could file a maritime tort against his or her employer for retaliation against or intimidation of an employee who was "seeking legal redress."59 The court essentially adopted a public policy exception to the termination at wil doctrine, although the Fifth Circuit declined to permit punitive damages under the maritime tort 'i Pickering \. Board of Education, 39 I U.S. 563 (1968). " See. e.g.. 42 USc. 1985; Griffn \. Breckenridge, 403 U.S. 88(1971). Bui see. Carpenter's Local 610 v. Scott. 463 U.S. 825(1983); Buschi v. Kinueni. 775 F. 2d 1240 (4th Cir. 1985); Taylor v. Brighton Corp.. 6 i 6 F. 2d 256(6th Cir. 1980). " See, e.g.. Novosel v. Nationwide Ins. Co.. 72 i F. 2d 894 (3rd Cir. 1983); Joney v. Memorial Hospital System 677 S.W. 2d 221 (Tex. App. 1984).,. 42 esc 200 et seq. " 42 U.S.c (a) (see Appendix S.) 'ò 42 USc. 200(b). '7 29 U.S.C/631(a); 29 USc. 623(d) (see Appendix T) " 29 USC 623(d). '" Smith v. Atlas Off-Shore Boat Service, 653 F.2d 1057, 1062 (5th Cir. 1981). ò" d. at 1064.
10 (VoL. 4:99 no state action, piracy to retaliate l Under the state ice of state action :ed.53 1 account of race, law contains a against any emnder Title VII, or n an investigation te and public sec-, 56,. iployees from dis- ~nty),5 ~es who "oppose" 'ere disciplined in ir participating in recognized that a iployer for retalia- "seeking legal rey exception to the it declined to per- 'I). Bui see, Carpenter's ~4th Cir. 1985); Taylor v. 983); Joney v. Memorial ir. 1981). 1986) WHISTLEBLOWER OVERVIEW Job Training and Partnership Act (JTPA) The JTP A prohibits retaliation against employees who allege that a recipient of a JTPA grant violated the JTPA or federal or state law or has fied a complaint under JTPA.61 The Department of Labor regulations implementing this act requires that the grantee employee initially utilize the internal grievance procedure.62 After exhausting the local grievance procedure63 the employee may file a complaint directly with the Department of Labor.64 Complaints can also be filed pursuant to 29 C.F.R Migrant and Seasonal Agricultural Workers Protection Act The Migrant and Seasonal Agricultural Workers Protection Act has a provision which protects migrant workers who file a complaint, institute proceedings, testify, or exercise rights under the Act.65 Any employee who alleges discrimination in violation of this Act must fie a complaint with the Secretary of Labor within 180 days after the employee first learns of the alleged violation Unsafe Containers The Safe Containers for International Cargo Act67 contains a whistleblower protection provision.68 Any employee who reports a violation of the Act or who reports the existence of an unsafe container which wil be used in international transport is protected from retaliation. A complaint must be filed with the U.S. Secretary of Labor within sixty days after the alleged violation occurs.69 III. PROTECTION UNDER STATE LAW The most important development in whistleblower protection has been the development of a state cause of action for retaliatory discharge. A majority of states have recognized a "public policy exception" to the common law termination-at-wil doctrine. This public policy exception has revolutionized the rights of whistleblowers. Instead of offering protection to employees covered under special laws or employees who work n' 29 L:.S.C I 574(g) (see Appendix U.) n' 20 CF.R CF.R "" 20 CF.R n' 29 USC 1855 (see Appendix V.) "" 29 CF.R (b). n' 46 USC seq. 0' 46 USc (see Appendix W.) "0 46 USC 1506(d).
11 108 ANTIOCH LAW JOURNAL (VoL. 4:99 for the federal or state governments, the public policy exception cause of action usually protects all private sector employees in the states which have adopted the exception. Additionally, most states classify a retaliatory discharge cause of action as a tort and consequently employees who file claims under this cause of action are entitled to jury trials and, if successful, punitive damage awards. Under traditional state common law, in the absence of an employment contract, an employee at-wil could be terminated for any reason, or for no reason.70 But, over the past twenty years, a majority of states have carved out a public policy exception to the termination-at-wil doctrine.71 If the termination of an at-wil employee was activated by an intent that contravenes some important public policy, state courts have recognized a public policy exception to the common law doctrine, and have awarded damages either in contract or tort. This national trend was summarized by the Supreme Court of California: (i)n a series of cases arising out of a variety of factual settings in which a discharge clearly violated an express statutory objective or undermined a firmly established principle of public policy, courts have recognized that employers' traditional broad authority to discharge an at-wil employee may be limited by statute or by considerations of public policy.72 The definition of what type of activity is protected under a public policy exception is stil evolving. Some states, such as Indiana, have limited the exception to cases "where the employee is discharged solely for exercising a right conferred on him by a statute, constitution, or other positive law."73 Other states apply a broader interpretation of public policy. For example, New Jersey adopted a "clear mandate" standard for defining what type of activity is protected under the public policy exception: (w)e hold that an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy. The sources of public policy include legislation; administrative rules, regulations, or decisions; and judicial decisions. In '0 See 12 ALR 4th 544. Discharge of At-Will Employees. 71 The first state to carve out this exception was California in the landmark case Peterman v. International Brotherhood of Teamsters. 174 Cal App. 2d P.2d 25 (1959). See also one of the first law review articles which powerfully endorsed a new state tort for retaliatory discharge. Blades, Employment Ai Will v. Individual Freedom: ALL Limiting ihe Abusive Exercise of Employer Power. 67 COLC~Bi.-\ L.R. 140 (1967). " Tameny \. Atlantic iychfield Co.. 27 CaL. 3d P.2d Cal Rptr. 83 (1980). 7' Pepsi-Cola General Bottles, Inc. v. Woods. 44 N.E.2d (Ind. Ct. App. 1982). See also, e.g.. Carrillo v. Illinois Bell TeL. Co F. Supp (N.D. Il 1982)(applying Ilinois law). 198 Ani shir Coi fait the Ilii gar Me Pro Tan v. S Fro HaT N.I COT 55 i tim & i ~b SUi N
12 (VoL. 4:99. exception cause of in the states which ~s classify a retaliaitly employees who ) jury trials and, if ence of an employited for any reason, a majority of states lination-at-wil docvas activated by an y, state courts have 11 law doctrine, and This national trend a: ctual settings in tory objective or ic policy, courts authority to disite or by considcted under a public ls Indiana, have limlischarged solely for mstitution, or other ~tation of public polindate" standard for r the public policy for wrongful disiandate of public slation; adminisial decisions. In landmark case Peterman v. ~d 25 (1959). See also one of )f for retaliatory discharge. lbusive Exercise of Employer O. i , i 64 CaL Rptr. 7 (Ind. Ct. App. 1982). See ). II 1982)(applying Ilinois 1986) WHISTLEBLOWER OVERVIEW 109 certain instances, a professional code of ethics may contain an expression of public policy. However, not all such sources express a clear mandate of public policy.74 Another definition was adopted by the Supreme Court of New Hampshire. In Monge v. Beebe Rubber Co.,75 the New Hampshire Supreme Court recognized a cause of action for termination resulting from "bad faith, malice, or retaliatory motive."76 The following states have recognized the public policy exception to the termination-at-wil doctrine: Arizona,77 California,78 Connecticut,79 Florida,80 Hawaii,81 Idaho,82 Ilinois,83 Kansas,84 Kentucky,85 Maryland,86 Massachusetts,87 Michigan,88 Montana,89 Nevada,90 New Hampshire,91 New Jersey,92 New Mexico,93 North Carolina,94 Oregon,95 Pennsylvania,96 Tennessee,97 7' Pierce v. Ortho Pharmaceutical Corp.. 84 N.J i 7 A.2d 505, 512 (1980). 7' i 14 N.H A.2d 549 (1974) A.2d at Wagenseller v. Scottsdale Memorial Hospital, 710 P.2d 1025 (Ariz. 1985); Vermillion v. AAA Pro Moving and Storage. 146 Ariz. 215, 704 P.2d 1360 (Ariz. App. 1985). n Peterman v. International Brotherhood of Teamsters. 174 CaL App. 184,344 P.2d 25 (1959); Tameny v. Atlantic Richfield Co., 27 CaL 3d P.2d CaL Rptr. 839 (1980); Hentzel v. Singer Co., 138 CaL App. 3d CaL Rptr. 159 (1982). 79 Magnan v. Anaconda Industries, Inc., 479 A.2d 78 i at at n.22; Sheets v. Teddy's Frosted Foos, Inc., 179 Conn A.2d 385 (1980). '0 Smith v. Piezo Technology, 427 So. 2d 182 (Fla. 1983). " Parnar v. Americana Hotels, Inc P.2d 625 (l9f2). " Jackson v. Minidoka Irrigation District. 563 P.2d 54, 98 Id. 330 (1977). 'J Wheeler v. Caterpillar Tractor Co N.E.2d 372 (IlL 1985); Palmateer v. International Harvester Co.. 85 II 2d N.E.2d 876 (1981); Kelsey v. Motorola. Inc., 74 II 2d N.E.2d 353 (1978). '4 Murphy v. City of Topeka. 6 Kan. App. 2d 488,630 P.2d 186 (1981); Cain v. Kansas Corp. Comm.. 9 Kan. App. 2d P.2d 45 i (1983). " Firestone Textile Co. v. Meadows, 666 S.W.2d 730 (Ky. 1983); Scroghan v. Kraftco Corp., 551 S.W.2d 81 I (1977). ", Adler v. American Standard Corp F. Supp. 572 (D. Md. 1982); Beye v. Bureau of National Affairs, 59 Md. App. 642,477 A.2d 1197 (1984).,- Fortune v. ~ational Cash Register Co., 373 Mass N.E.2d 1251 (1977). "' Seveniko v. Kroger Co.. 69 Mich. App N.W.2d 151 (1976); Trombetta v. Detroit. T & i. R.R.. 81 Mich. App. 489, 265 ~.W.2d 385 (1978). '" ~ye V. Department of Livestock, 639 P.2d 498 (Mont. i 982); Dare v. Montana Petroleum Marketing Co P2d 1015 (Mont. 1984). 90 Hansen v. Harrah's. 675 P.2d 394 (Nev. 1984); Savage v. Holiday Inn Corp.. Inc., 603 F. Supp. 311 (D.C. ~ev 1985); Wolber \. Service Corp. InternationaL 612 F. Supp. 235 (D.C. Nev. 1985) 01 Monge v. Beebe Rubber Co. 114 ~.H A.2d 549 (1974). 0' O'Sullivan v. Mallon. 160 K.J. Super. 416,390 A.2d 149 (1978); Kalman v. Grand linion Co., 183 N.J. Super A.2d 738 (Ia82) 01 Vigil v. Arzpla, 102 N.M P.2d 613 (Ct. App. 1983), mod. on oiher grounds, 101 N.M P.2d 1038 (1984). 04 Sides v. Duke HospitaL. 328 SE.2d 818 (N.C. App. 1985).
13 110 ANTIOCH LAW JOURNAL (VoL. 4:99 Texas,98 Virginia,99 Washington,IOO West Virginia,I01 and Wisconsin.102 The following states have indicated that, given a proper set of facts, they would recognizie the public policy exception: Indiana, t03 Wyoming. 104 The following states have not adopted a common law public policy exception: Alabama,105 Ohio,I06 Missouri,107 Georgia,108 and New York.i09 A number of states have passed statutes protecting employee whistleblowers in the public sectorllo or protecting private and public sector whistleblowers. iii q, Patton v. J.c. Penny Co., Inc., 707 P.2d 1256 (Or. App. 1985); Nee v. Hocks. 272 Or. 210, 536 P.2d 512 (1975); Delany v. Taco Time International, Inc., 297 Or P.2d 114 (1984). oò Reuther v. Fowler & Wi1iams. Inc Pa. Super A.2d 119 (1978). Numerous federal district courts applying Pennsylvania law have recognized public policy causes of action; see, e.g., Perks v. Firestone Tire & Rubber Co F.2d 1363 (3d Cir. 1979). Also see Geary v. United States Steel Corp Pa. 171,319 A.2d 174 (1974). 07 Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984). 08 Hauck v. Sabine Pilots, Inc., 672 S.W.2d 322 (Tex. App. 1984). 00 Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985). 'll Thompson v. St. Regis Paper Co., 110 Wash. 2d 219, 655 P.2d 1081 (1984). 10' Harless v. First National Bank, 246 S.E.2d 270 (W. Va. 1980). 102 Ward v. Frito-Lay, Inc., 290 N.W.2d 536 (1980); Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d N,W.2d 834 (1983); Harman v. LaCrosse Tribune, 117 Wis. 2d 448, 344 N.W.2d 536 (1984). 10" Campbell v. Eli Lilly & Co N.E.2d 1054 (Ind. 1980). ''' Rompt v. John Q. Hammons Hotels, 685 P.2d 25 (Wyo. 1984). "" Hinrichs v. Tranqui1aire Hosp So. 2d 1130 (1977). 106 Phung v. Waste Management, Inc.. - Ohio St. 3d - (slip op. of April 16, 1986). 107 (Not granted under the factual circumstances presented in the case) Dake v. Tuell. 687 S.W.2d 19 \, Mo. banco (1985); Neighbors v. Kirksville College of Osteopathic Medicine, 694 S.W.2d 822 (Mo. App. 1985). 108 Taylor V. Foremost-McKesson. Inc F.2d 1029 (5th Cir. 1981); Grace V. Roan, 145 Ga. App S.E.2d 17 (1978); Gunn V. Hawaiian Airlines. Inc., Ga. App. 291 S.E.2d 779 (1982). too Although N.Y. courts hav rejected a public policy exception, a statute has been passed protecting whistleb1owers. N.Y. section 740. "0 See, e.g..: Delaware Hawaii Ilinois Indiana Maine Texas Washington Wisconsin 1\\ See: 29 section 5115 Sec Ch section c.i section 832 ARt a California Connecticut Maine Michigan New York Section Section m 26 section 831 Section et seq. Section 740 "'- -~.~. ~~,.~",-r._'--
14 (VoL. 4: ) WHISTLEBLOWER OVER VIEW 11 1 and Wisconsin. 102 proper set of facts, n law public policy I1d New York.109 rotecting employee private and public fees v. Hocks, 272 Or. 210, 10, 681 P.2d 114 (1984). 2d I 19 (1978). Numerous policy causes of action; see, ). Also see Geary v. United 1081 (1984). Dun & Bradstreet, 113 Wis. s. 2d 448, 344 N.W.2d 536 if April 16, 1986). : case) Dake v. Tuell. 687,athic Medicine, 694 S.W.2d il); Grace v. Roan, 145 Ga.!\pp. 291 S.E.2d 779 (1982). ;tatute has been passed pro- When litigating in state court, employees are not required to limit their cause of action to just the public policy exception. Employees often include other more traditional causes of action in their complaints, such as a breach of contract based on the terms of the employment contract or employee manual, i 12 an implied covenant of good faith and fair dealing,l13 intentional infliction of emotional distress, 1 14 fraud, 115 negli and an implied gence, i 16 invasion of privacy, i i 7 defamation, con tract. i 19 If there is a state or federal statutory remedy covering a whistleblower claim, some courts have required the employee to invoke the statutory remedy instead of the public policy common law remedy. 120 IV. CONCLUSION Whistleblower protection law is very new. No state recognized a public policy exception until Today, almost half of the states stil have not firmly addressed the issue of whether they wil adopt a public policy exception cause of action. With the exception of the NLRA and 112 Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983); Arie v. Intentherm, 648 S.W.2d 142 (Mo. App. 1983); Morris v. Lutheran Medical Center, 215 Neb. 677, 340 N.W.2d 388 (1983); Hammond v. N.D. State Personnel Bd N.W.2d 359 (N.D. 1984); Langdon v. Saga Corp P.2d 524 (Okla. App. 1976); Jackson v. Minidoka Irrigation, 98 Idaho 330,563 P.2d 54 (1977); Magnan v. Anaconda Industries, Inc., 37 Conn. Supp. 38 (1980); Terrio v. Millenocket Community HospitaL, 379 A.2d 135 (Me. 1977); Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 NW.2d 880 (1980). ".' Mitford v. de Lasala, 666 P.2d 1000 (Alaska i 983); Monge v. Beebe Rubber Co., 114 N.H A.2d 549 (1974); Fortune v. National Cash Register Co N.E.2d 1251 (Mass. 1977); Cleary v. American Airlines, Inc.. i i i CaL. App. 3d 443. i 68 CaL. Rptr. 722 (1980). ". Agis v. Howard Johnson Co.. 355!'.E.2d 315 (Mass. 1976); Lucas v. Brown & Root. Inc., 736 F.2d 1202 (8th Cir. 1984); Kelly v. Gen. TeL. Co., 136 CaL. App. 3d 278, 186 CaL. Rptr. 184 (1982). '" DuSesoi v. L'nited Refining Co., 540 F. Supp 1260 (W.O. Pa. 1982). li6 Chamberlain v. BisselL. Inc F. Supp (W.O. Mich. i 982); Kelly v. Gen. TeL. Co CaL. App. 3d 278, 186 CaL. Rptr. 184 (1982). li7 Payton v. City of Santa Clara, 183 CaL. Rptr. 17, 132 CaL. App. 3d 152. '" Kelly v. Gen. TeL. Co., i 36 CaL. App. 3d CaL. Rptr. 184 (1982); Agarwal v. Johnson, 25 CaL. 3d CaL. Rptr. 141 (1979). liq Pugh v. See's Candies. Inc. 116 CaL. App. 3d CaL. Rptr. 917 (1981). '2(' Mein v. Masonite Corp II App. 3rd :-.E2d i 137(1937); Ohlsen v. DST Industries. Inc., i i I Mich. App. 580(1980); Strauss v. A.L. Randall Co CaL. App. 3rd 514(1983); Wolk v. Saks Fifth Ave F.2d 221(3rd Cir. 1984). Bui set' Holien v. Sears Roebuck Co. 298 Or P.2d 1292 (1984); McKinney v. National Davis Council, 49 i F. Supp. i 108 (D. Mass 1980); Stokes v. Bechtel North American Power Corp F. Supp (N.D. CaL. 1985); Wheeler v. Caterpillar Tractor Co II 2d 502, 485!'E.2d 372 (1985); Garibaldi v. Lucky Food Stores, Inc F.2d 1367 (9th Cir. 1984); Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), Colorado Anti.Discrimination Commission v. Continental Air Lines, Inc., 372 U.S. 714 (1963). In Greenwald v. City f l'orth Miami Beach. 587 F.2d 779, 78 i (5th Cir. 1979), the court held that the federal administrative remedies for whistleblowers under the Safe Drinking Water Act were "entirely independent of any state or local remedies."
15 , 112 ANTIOCH LAW JOURNAL (VoL. 4:99 Title VII, the federal whistleblower protection statutes are all relatively new and have little clear judicial precedent interpreting their provisions. Whistleblower protection is an important and growing area within employment discrimination/retaliation law. A majority of courts which have heard the issue recognize the social usefulness of protecting from retaliation employees who disclose potential violations of law or public policy. The critical issue is what type of remedy should be utilized to address this problem. The statutory and common law approaches outlined in this brief survey are not the only remedies available to whistleblowers. People involved in whistleblower cases must carefully evaluate the facts of each case and utilize the most effective legal strategy appropriate under the circumstances. In whistleblower cases an attorney often must follow a flexible, innovative, and aggressive approach towards litigation in order to ensure that a wrongfully discharged employee obtains justice. ADDENDUM Since the original publication of this article congress amended the false claims act to protect whistleblowers in both the public and private sectors who expose fraud directed against the federal government. The law is extremely broad in scope and offers a wide range of protection to whistlebiowers, including reinstatement, two times the amount of back pay, attorney fees, special damages, and punitive damages. Complaints should be filed in the appropriate Federal District Court. 31 U.S.c (see Appendix X) ~..,,~~~~, -~~l,.;~...
16 (VoL. 4:99 es are all relatively ng their provisions. rowing area within ~ity of courts which of protecting from ins of law or public riould be utilized to aw approaches outnedies available to ;ases must carefully fective legal strategy \ler cases an attorney ve approach towards riarged employee ob- ongress amended the he public and private ral government. The range of protection to s the amount of back damages. Complaints ::ourt. 31 U.S.c ) WHISTLEBLOWER OVERVIEW 113 APPENDIX A. U.S. Constitution, Amendments 1 and 14. B. Toxic Substances Control Act, 15 U.S.c C. Superfund, 42 U.S.c D. Water Pollution Control Act, 33 U.S.c E. Solid Waste Disposal Act, 42 U.S.c F. Clean Air Act, 42 U.S.c G. Energy Reorganization Act, 42 U.S.C H. Safe Drinking Water Act, 42 U.S.c. 300-j-9. i. Federal Mine Health & Safety Act, 30 U.S.c. 815(c). J. Fair Labor Standards Act, 29 U.S.c K. Occupational Safety & Health Act, 29 U.S.c. 660(c). L. National Labor Relations Act, 29 U.S.c. 158(a)(4). M. Surface Transportation Act, 49 U.S.c N. Longshoreman's and Harbor Worker's Compensation Act, 33 U.S.c. 948(a). O. Civil Service Reform Act,S U.S.c P. Employee Retirement Income Act, 29 U.S.c Q. Surface Mining Control and Reclamation Act, 29 U.S.c R. Civil Rights Act of 1871,42 U.S.c S. Title VII, 42 U.S.c. 200e-4(a). T. Age Discrimination in Employment Act, 29 U.S.c. 623(d). U. Job Training and Partnership Act, 29 U.sc V. Migrant and Seasonal Agricultural Workers Protection Act, 29 U.S.c W. Safe Containers for International Cargo Act, 46 U.S.c
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