RETALIATION LAW CHANGES IN CASE LAW

Transcription

1 RETALIATION LAW CHANGES IN CASE LAW A. History of Whislteblowing The term whistleblowing originated from the early British police force members, known as English Bobbies. When they saw illegal activity, they would blow their whistles not only to alert other law enforcement officials, but also to warn the general public of the current danger. The term has migrated into a common label of for reporting or revealing wrongful acts of co-workers or employers. Kansas is an employment-at-will state. As such, an employee can be terminated for just cause, no cause, or for wrong cause. There are exceptions to this rule. One exception is whistleblowing. Whistleblowing is the act of reporting actions of co-workers or supervisors that violate laws, regulations, or rules that pertain to public policy, health, or safety. In 2002, Congress enacted the Sarbanes-Oxley Act. This particular Act provided broad-reaching reform, dealing mostly with securities exchanges and public corporations. Also included in this Act, were significant protections for workers who reported wrongful acts of their co-workers or supervisors. Although this is federal law, its application and protections have influenced state courts. The ultimate rationale behind providing protection for whistleblowers is that publicized wrongdoings will deter continued wrongful acts and promote a more ethical workplace environment. The numerous scandals leading up to the Sarbanes-Oxley Act (Enron, Worldcom, etc.), in part, prompted Congress to take action to reduce wrongful corporate actions and activities. B. Practially Speaking, what is Whistleblowing? The term whistleblowing infers two things: 1) you have a whistle and 2) you blow it. If you don t have both, you can t be a whistleblower. If you are complaining about activities that never happened or are legal, then you don t have a whistle to blow. The courts have come to define different types of actions that constitute whistleblowing. This section will discuss various activities that have been reviewed. 1. Public employee sending memos to a supervisor and to the Governor. Prager v. State of Kansas, Department of Revenue, 271 Kan. 1 (2001). 47

2 Plaintiff brought a wrongful termination action, among other claims, against his Employer, alleging that he was terminated for exercising his right to report false practices. Plaintiff sent a memo to his supervisor, and to the Governor, expressing concern over what he believed to be tax fraud. Plaintiff was terminated for lack of judgment, insurbordination, and for breach of confidentiality. Plaintiff also alleged that his right to freedom of speech had been violated. The Kansas Supreme Court quickly dismissed his allegations of free speech violations, stating that under the Kansas Tort Claims Act, a governmental entity could only be liable for an act that a private person could be held liable for. Since there was no cause of action for which a private person could be held liable for deprivation of a person s freedom of speech, the State was not liable. Regarding the whistleblowing claim, the Court stated that the Plaintiff could not sustain a claim for whistleblowing because he disclosed confidential tax information that he was privy to based on his position in the department. Such an activity was strictly prohibited and negated any claim of retaliation for whistleblowing. 2. Nurse alleging unsafe nursing practices. Goodman v. Wesley Medical Center, 276 Kan. 586 (2003). Plaintiff brought an action against her former employer after she was terminated. Plaintiff nurse alleged that she was terminated for complaining about the Defendant hospital s understaffing of nurses. Plaintiff released medical records to an attorney who was suing the hospital for negligence in a separate matter. Some of the medical records released to the attorney were relating to patients other than the attorney s clients. The Court held that the nurse had failed to prove that the employer s alleged wrongdoing was connected to her termination. The nurse s opinion that the hospital was understaffed was insufficient to prove that the employer had engaged in unlawful activities. Furthermore, the Plaintiff was terminated for releasing medical records of patients without authorization, which was a legitimate nondiscriminatory reason for her termination. 3. Person committee must be the employer. Thompson v. Topeka Convention & Visitors Bureau, 130 P.3d 149 (2006) 48

3 Plaintiff brought an action for a variety of claims, including retaliation for whistleblowing. Plaintiff was a convention sales manager who worked very closely with the Topeka Expocentre. Plaintiff met with a County Commissioner to complain about breakdown in communications and the Expocentre s unwillingness to be more flexible with regard to other events. The Court dismissed her complaint because the Expocente was not her employer. 4. In-house attorneys Heckman v. Zurich, 242 F.R.D 06 (2007) Plaintiff was in-house counsel for insurance company. The Court examined whether an in-house attorney could bring a claim for retaliatory discharge, given the issues surrounding the attorney-client privilege. The Court held that the in-house position requires a balance between and attorney/client relationship and an employer/employee relationship and allowed the attorney to file a retaliatory discharge action for whistleblowing. 5. Employer must have knowledge of the reporting. Fowler v. Criticare Home Health Services, Inc. (2001) Plaintiff was a shipping manager for a small health services company. Plaintiff was instructed to ship handguns and ammunition to the company s owner. Plaintiff refused to do so and told his company that if they shipped the guns, he would contact the shipping agency and inform them of the action. After the plaintiff left for a delivery route, his supervisor shipped the guns and ammunition. When the Plaintiff discovered this information, he reported the action to the shipping company. Plaintiff did not tell his employer that he had reported the action. After the Tobacco and Fire Arms authorities investigated the matter, the Plaintiff was terminated, and subsequently brought a retaliatory discharge action for whistleblowing. The Court found for the Defendant on the whistleblowing allegations. The Court followed a strict reading of prior cases that require the employer to have known about the reporting activity. Furthermore, the Court stated that since the Plaintiff did not report the activity to higher internal authorities in the company or law enforcement, the action could not be maintained. 49

4 C. What is the Whistleblowing Standard? 1. Plaintiff must prove: a. A reasonably prudent person would have concluded the employee s coworker or employer was engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare. b. The employer had knowledge of the employee s reporting of such violation prior to discharge of the employee, AND c. The employee was discharged in retaliation for making the report 2. Plaintiff must also prove: a. Whistleblowing was done in good faith based on a concern regarding the wrongful activity reported rather than for a corrupt motive like malice, spite, jealousy, or personal gain 3. If the Plaintiff can prove that, then the employer must prove: a. Plaintiff was terminated for a legitimate nondiscriminatory reason 4. If the Employer can prove that, then the employee must prove: a. That the Employer s motives were pretextual D. Kansas Whistleblowing Act The Kansas Whistleblowing Act is found in K.S.A This section applies to public employees only. The Supreme Court of Kansas has previously addressed the issue of whether or not a public employee could pursue a common-law action under a whistleblowing theory in Prager v. State of Kansas, Department of Revenue, 271 Kan. 1 (2001). Ultimately the Court held that the Kansas Whistleblowing Act provided a sufficient remedy for public employees and they could not sustain a common-law action for retaliatory discharge under a whistleblowing theory. What does this mean to you? If you are a private employer, nothing. If you are a public employer, the Kansas Statute will control regarding allegations of retaliation for whistleblowing. 50

5 E. Tips and Strategies for Reducing Whistleblowing Claims Exposure 1. DOCUMENT, DOCUMENT, DOCUMENT a. Anyone with a pencil and the right size sheet of paper can file a lawsuit and allege anything b. Documentation of the employee s infractions leading to termination are vital to defending the allegations c. Document all activity, action taken, persons involved 2. Treat your employees equitably a. Final prong of the test is where the Court will look at the proposed discrimination b. Have a policy for handling complaints and allegations of wrongdoing c. Follow the policy 3. Provide avenues for the reporting of illegal activity a. If illegal activity is going on, you want to know about it b. Promotes an environment that makes a whistleblowing case more difficult for a Plaintiff c. Follow up on allegations of illegal or wrongful activity 4. Other factors to consider a. Make sure complaints were made about the employer b. Make sure complaints were made to the employer Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation. 51