The Failure of Expected Protections (Part 1)
All states but Montana mandate an employment-at-will policy
that enables both the employee and employer to terminate an employment
arrangement (that is not bound by contract or collective bargaining agreement)
whenever they choose[1]. This policy can threaten whistleblowers,
among others, so most states have concluded that decisions based on employment-at-will
may be barred if they act against the public good.
Because the violation of federal or state law wrongs the public,
an employee who resists committing a criminal act is protected as an exception to the employment-at-will policy. Another exception is the reporting of a criminal act by one’s employer. States apply this public policy protection in
different ways: for example, a Texas employee is protected only when the sole
reason for termination was his or her refusal to perform an illegal act that
carries criminal penalties; in Louisiana, the employee must be certain that the
company’s behavior was illegal – a reasonable belief is not sufficient.
The public policy exception is commonly not extended when the employee acts in his or her personal interest (including
spite) or to harm, or benefit, the employer.
HomeFirst’s claim that I hoped to damage the company would, for example,
undercut a claim I made under this public policy exception to
employment-at-will.
In most states, the public policy exception is available
only if the violation is reported to a public official, rather than to a
company supervisor. If the employee is
fired before reporting the issue to a public person, then the claim of
retaliation becomes more problematic.
The uncertain protection provided through this common law mechanism
led many states to provide two sorts of statutory protections. The first is embedded in the specific legislation
– for example, laws concerning residential licensing or minimum wages – that
the whistleblower alleges has been violated.
This approach to protection results in a wide variety of rules,
procedures, and deadlines that are created over years to satisfy the demands of
different constituencies and sensitivities.
The second is the general whistleblower protection laws offered
by about a third of the states. These laws
vary widely in their protections and procedures. Deadlines vary: Michigan allows public
employees just 90 days from the retaliatory action, but six months is common
for administrative actions and two years for lawsuits. New Hampshire requires the employee to inform
the employer and give it a reasonable opportunity to correct its violation,
which opens the door to the extended correction periods that HomeFirst said it deserved. New York’s law only covers conduct that
presents a substantial and specific danger to public health and safety, which
would have given HomeFirst a free ride. Tennessee
assures its whistleblowers that they will be protected when their actions provided
the sole reason for their termination – in Delaware it must be the primary
reason – although most employers will, as HomeFirst did, come up with
additional reasons. North Carolina warns
whistleblowers whose suits are frivolous that they will be liable for their
employer’s defense costs, encouraging every employer to claim that every
whistleblower’s claim is frivolous – as HomeFirst claimed mine was only a way to
get a richer retirement.
The California law
may provide the most attractive protections for whistleblowers. Possible violations include those of local, state, or
federal laws and regulations. The violations may
be actual or reasonably believed by the whistleblower. They may, but need not, be identified in the
course of the employee’s job activities.
Reports may be made to company or public officials. The potential $10,000 fine is unlikely to
deter many companies from retaliation, but it is, at least, more than Michigan’s
$500 per incident and Maine’s $10 a day.
The law first requires the whistleblower-plaintiff to
demonstrate by “a preponderance of the evidence” – that it is more likely the
case than not[2] –
that the whistleblowing was a contributing factor in the retaliation –
not the primary or sole factor. Then the
employer-defendant must demonstrate that the alleged retaliation would have,
more likely than not, occurred for legitimate, independent reasons in the
absence of any whistleblowing.
My understanding of the law combined with my evidence of the wrongdoing gave me hope for a successful outcome from my complaint
to California’s Department of Industrial Relations despite two years of disappointing experience with my other complaints.
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