If you have stumbled upon a violation by your employer and you want to report it, speak to an experienced Woods Cross Utah Corporate Lawyer.
Whistleblower disclosures to nongovernmental agencies and the news media have been protected by the DOL under whistleblower laws that are virtually identical to the SOX. Often employee protected activities include a combination of speech-related activities, all directed at calling attention to allegations of misconduct and attempting to apply pressure on regulatory agencies to do their job. For example, in one case in which the DOL found protected activity, the employee had engaged in extensive activities to “publicly reveal information” about his misconduct allegations. In addition to contacting members of Congress, the employee had communicated with a public interest organization and reporters. He was quoted in “three prominent” newspapers. All these activities were protected. Under OSHA, courts have protected communications with the press because it was “clear” that an “employee’s communication with the media” could result in the initiation of regulatory proceedings. This holding has been regularly followed by the DOL.
Numerous cases have also held that federal whistleblower laws fully protect employee disclosures to other nongovernmental bodies, such as trade unions, attorneys, and public interest organizations. The DOL has treated the following types of conduct as protected under the whistleblower laws it administers: threat to file a public interest-related lawsuit, contacting a union representative, contacting a newspaper reporter, threatening to contact the press, causing “negative publicity” in the press, and participating in a television report. However, merely discussing misconduct allegations with a member of the “general public,” without putting forth evidence that the employee is “about to file a complaint” or participate in a proceeding, is “too remote” to be considered protected activity.
Reporting Concerns to Co-employees
Whistleblower disclosures made directly to co-employees have been protected under state and federal law. Under the nuclear whistleblower law, the DOL held that a “complaint to a coworker may be the first step” in reporting a violation.
Under established case law, the DOL-administered whistleblower laws prohibit employers from discharging employees even if they only “suspect” that the employee engaged in protected conduct. The laws also protect employees who are not personally engaged in protected activity but are believed to be so engaged by their supervisors. The focus of the inquiry is on an employer’s perception that an employee engaged in protected activity and whether the employer was motivated by its belief that the employee had engaged in such conduct.
Manner of Engagement
If the manner in which an employee engages in whistleblowing is completely outrageous or improper, the conduct may lose its status as protected activity. Outrageous activity by employees constitutes an independent justification for discipline. Courts have held that where otherwise-protected protest activities unjustifiably interfere with an employee’s job performance, discipline against such an employee may be proper.
In analyzing whether the manner in which an employee engages in protected activity is so outrageous as to lose protection, the U.S. Supreme Court has drawn a distinction between protected activity that involves speech versus protected activity that involves conduct. Alleged misconduct based solely on the content of employee speech is subject to stricter scrutiny than cases in which employee conduct is at issue.
Under federal law, if an employee files a charge or complaint against an employer with a government regulatory body, the employee cannot be disciplined, even if the content of the charge is libelous. Internal protected speech, whether written or oral, should be protected even if it is “vehement, caustic” or “unpleasantly sharp.
Employee conduct is subject to stricter scrutiny than speech. An employee who “behaves inappropriately” is not immunized from discipline merely because the “behavior relates to a legitimate safety concern.” Alleged protected activity may lose protection if the conduct is indefensible or unduly disruptive. The courts, on a case-by-case basis, consider whether the employer’s interest in the “smooth functioning of his business” is outweighed by the employee’s interest in internally resolving the discrimination dispute. Under this balancing test, unprotected conduct included dissemination of false and derogatory accounts of an employer’s management practices to nongovernmental sources, the interference of a company’s business relationship with a customer, misuse of a company telephone to call one’s attorney, and other conduct that interfered with the employee’s job performance or disrupted the workplace.
The SOL has recognized that “intemperate language,” “impulsive behavior,” and even alleged “insubordination” often are associated with protected activity.
In general, employees engaged in statutorily protected activity may not be disciplined for insubordination so long as “the activity (claimed to be insubordinate) is lawful and the character of the conduct is not indefensible in its context.” The issue of whether an employee’s actions are indefensible under the circumstances turns on the distinctive facts of the case.
Given the very nature of whistleblowing, employee whistleblowers are often accused of personality problems, criticized for not being able to “get along with” “co-workers,” or attacked for “disloyalty” and for not being a “team player.” Relying upon these types of criticisms to justify adverse actions, employers often build a defense on the grounds that they have discretion to set a “wide range of requirements on employees,” even if such requirements may be “arbitrary” or “ridiculous.” However, courts have rejected employer reliance upon so-called personality problems when such problems arose as a result or manifestation of protected activity. For example, when criticisms of an employee’s “communication style” arose as a result of “auditing work,” such conduct is not “indicative of behavior that would negate protection” under whistleblower laws. Likewise, a loss of “trust” arising from protected activity does not justify adverse action.
Employees may investigate or file complaints regarding matters that are “outside the course and scope” of their employment. But an employee does not have “carte blanche” authority to “choose the time, place and/or manner” of engaging in protected activity. An employee’s on-the-job disobedience in refusing to stop investigating potential wrongdoing on matters that fell outside of his job duties was not protected.
Theft of company documents will almost certainly be found unprotected. The SOX only protects “lawful” activities. Similarly, employees who have rummaged through a supervisor’s desk attempting to obtain and copy “confidential documents” and show those documents to coworkers have lost protection. But under the appropriate set of circumstances, obtaining documents from work is protected conduct.
An employee’s refusal to perform work is generally not protected. There are, however, exceptions to this rule. First, under a number of antiretaliation laws, employees can refuse to perform work that they believe, in good faith, would be unsafe or unhealthful. Second, a number of cases protect employees who have refused to perform illegal work or commit an illegal act. Work refusals are usually “no longer protected” if the underlying cause of the refusal is “properly investigated, found wanting, and adequately explained.”
In the context of the SOX, a DOL ALJ found that an employee’s refusal to change the rating of a stock during an internal management meeting was fully protected activity.
Reasonable Belief Standard
Under the SOX, an employee is under no obligation to demonstrate the validity of his or her substantive allegations. The concern that resulted in the initial whistleblower disclosure need only be based on a “reasonable belief” that an actual violation occurred. This “reasonable belief” must be based on “reasonably perceived violations” of the applicable law or regulations. The “standard for determining” whether an employee’s “belief is reasonable involves an objective assessment” of the employee’s concerns. If you are being subject to discrimination because you acted as a whistleblower employee, speak to an experienced Woods Cross Utah Corporate Lawyer today.
Employees are under no duty to demonstrate the underlying veracity or accuracy of their allegations. In this vein, allegations remain protected even if facts later demonstrate that the concern was “corrected,” that the regulatory agency was “already aware” of the problem, or even if the regulatory authority later rules that the concern was not correct. Even a potentially libelous complaint may be protected. An employee’s motivation for filing a complaint is, in most jurisdictions, irrelevant, and even if an employer believes that the safety allegations are “trivial,” an employee may still be protected.
Many whistleblower or antiretaliation statutes contain a “participation clause” that even further protects employee speech. When engaging in activities protected under a “participation clause,” such as testifying in a proceeding or providing information to a government investigator, the scope of employee protections is “exceptionally broad.” Under this clause, “it is not necessary” for an employee to “prove” that the underlying allegations were accurate. When engaging in whistleblower speech in the context of participating in a protected proceeding, the public interest in “maintaining unfettered access to statutory remedial mechanisms” is extremely strong, and Congress intended to “carve out” a “safe harbor from employer retaliation.”Thus, even an employee who is forced, not in good faith, but against his will, to “participate” in a covered proceeding is protected from retaliation on the basis of the content of the testimony.
Knowledge of Protected Activity
In order to establish a prima facie case, an employee must not only demonstrate that he or she engaged in protected activity but must also demonstrate that the employer or respondent knew of this protected conduct. Simply put, there can be no discriminatory motivation without prior knowledge that an employee engaged in protected activity. Consequently, unless an employee can demonstrate that the “officials who made the challenged decision” knew of the employee’s protected activities, the case will be dismissed.
Knowledge of protected activity may be established by either direct or circumstantial evidence. This can include proof that managers suspected the employee of having engaged in protected activity. But regardless of the method used to prove this element, an employee bears the ultimate burden of persuasion on this issue.
An employer cannot insulate itself from liability by creating layers of bureaucratic ‘ignorance’ between a whistleblower’s direct line management and the final decision maker. “Constructive knowledge” of the protected activity can be attributed to the employer’s final decision maker. Likewise, employer knowledge of protected activity can be inferred from other circumstances, such as the size of the workplace. Also, a deciding official who is “suspicious” that an employee engaged in protected activity is “sufficient to show” an employer’s knowledge.
If an employee with knowledge of the protected activity “contributed heavily” to the decision to take an adverse action against an employee, knowledge on the part of the employer will be inferred, even if the actual decision maker had no knowledge. An employer cannot defend this element of a case by alleging that its “managers did not know” that a concern implicated a potential violation of law, if the employee’s allegations “reasonably” should have been “perceived” as communicating such a violation.
The SOX broadly prohibits adverse action in retaliation for an employee’s engaging in protected activity. The statute includes numerous types of discriminatory conduct in its definition of adverse action, and is not limited to prohibitions against wrongful discharge. The law states that no employer may “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment” based on the employee’s “lawful” protected activity. If you believe your employer is retaliating against you for being a whistleblower, consult with a Woods Cross, Utah Corporate Lawyer.
The legislative history of the SOX demonstrates Congress’s intent to ensure that employees who prevail in corporate whistleblower cases are properly compensated. The heart of a SOX damage award is a mandatory “make whole” remedy. Under the SOX, the “make whole” remedy authorizes a court or the DOL to award all relief necessary to make an employee “whole.” This relief includes such things as reinstatement, back pay, interest, special damages, and attorney fees. Depending on the level of position held by an employee, and the type of adverse action at issue in a case, the amount of damages awarded can range from nonmonetary relief only (such as revoking a transfer or reassignment) to a multimillion-dollar award. Speak to an experienced Woods Cross Corporate Lawyer about your situation today.
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