Orange County Whistle Blower Rights

Posted by Sessions & Kimball |

Know that a whistleblower does have rights! Recently, three former aerospace employees were awarded $45.3 million when they were fired after reporting flaws in the construction of aircraft. Courts have awarded whistle-blowers their actual wage loss until they find another job, the difference between their wages for a reasonable time in the future, lost benefits, reinstatement in the previous job, attorney’s fees, and punishment, or “punitive,” damages. The major question is whether and how to blow the whistle.

Laws Preventing Retaliation

State and federal laws protect whistle-blowers employed by either public or private employers. The subject of whistle-blowing must be a legal right or duty that is truly in the “public interest” originating in a constitutional or statutory provision. For example, it is improper for an employer to retaliate against an employee who complains about safety rules, fraud or government contracts, illegalities, discrimination laws, or refusal to obey any other law established in the public interest. Federal laws do riot cover every situation and state laws are not all consistent. Evaluation of the applicable law must be on a case-by-case basis.

Reasons to Become a Whistle Blower

1. Duty to the public: Civic duty to the public at large often compels an employee to disclose improprieties about the employer.

2. Duty to licensing authority: An employee’s own license might require non-participation in illegal actions and disclosure to proper authorities. Failure to do so could subject the employee to discipline or loss of license.

3. Duty to the employer: Complaining to upper management about improprieties of lower management may be the duty of the employee pursuant to the company policy or handbook. One may be placed in the awkward situation of complaining to the supervisor’s boss about the supervisor. The loyalty of the employee should be to the company that determines the master policy and issues the payroll check.

4. Employee’s own conscience: Simply trying to do “what is right” has often been the incentive for the whistleblower.

5. Protection against personal liability: Involvement in illegalities or improprieties may subject an employee to personal civil or even criminal liability. The immediate need to receive wages is a weak excuse for an employee who participates as a co-conspirator with other personnel involved in illegal activity by the employer if the result could be personal civil or criminal liability. People who understand the consequences of these actions are more willing to complain about improprieties.

6. Improve job security: In some situations, the whistleblower can even help secure an employment position. This is especially true if the employee is already on the list” for layoff or termination. Blowing the whistle on the employer might make it very difficult for the employer to terminate the employee for fear that a claim for retaliatory termination might be made.

7. Financial gain: Not only are appropriate whistleblower activists protected in their employment, but they also can earn, as “finder’s fees,” 15 to 30 percent of any recovery for fraud against the government that they uncover. In one case, a whistleblower was awarded $7.5 million in a lawsuit alleging his former employer padded Pentagon contracts.

Reasons Not to Blow the Whistle

1. Alienation in the workplace: Even though there are procedures by which to complain anonymously, if it should become known, the employee is often alienated in the workplace.

2. Loss of trust: The management of the company looks at whistle-blowers as “traitors” to their cause. Any trust or camaraderie that formerly existed is often lost.

3. Substantial delays: Resolution of disputes seldom happens promptly in the judicial system or through government channels. Delays for many years are not uncommon.

4. Blacklisting: The reputation of a whistle-blower often becomes known in the industry. Problems are caused when an employer deliberately encourages others not to hire the employee, spreads lies, or simply fails to give enthusiastic support about an employee’s loyalty and performance to a prospective employer. Being a whistleblower may cause self-imposed blacklisting by the employee who is now forced to truthfully admit to future prospective employers that the reason for loss of employment was because of whistleblower actions. Few employers feel comfortable hiring an employee who has such a reputation.

How to Become a Whistle Blower

1. Gather evidence: Document in writing all evidence of the violation of public policy.

2. Confirm witnesses: Confirm any witness support for the claim. Note home addresses and telephone numbers.

3. Prove illegality: Gather all necessary information to prove the impropriety. Some states provide protection even if the company’s action is not illegal as long as the employee reasonably thought that it was.

4. Anonymous complaint: Consider making a complaint to proper authorities in an anonymous manner. The advantage of doing this is that it might limit retaliation against the employee.

5. Public complaint: If it would be obvious who made the complaint anyway, the employee might be better off disclosing the source of the complaint to claim the legal rights against retaliation. It must be shown that the employer had knowledge of the complainer.

6. Document retaliation: It is not enough to prove illegality once the employer knew of the whistle-blower. Actual retaliation must be proven by evidence of harassment; double standard, unwarranted disciplined; or retribution through loss of benefits, demotion, or termination. A daily diary is helpful to record retaliation as it happens.

7. Complain to the appropriate party: Many states require that the complaint be made to the appropriate government agency. Some states give employees substantial rights against retaliation even if the complaint is made to higher management.

8. Complain about retaliation in a timely manner: Complaints must be made timely. Some states require complaints to be made within an extremely short time period, such as 30 days, to the appropriate government agency. Some states have other deadlines such as a one-year period.

9. Make sure: Given the consequences of whistle-blowing and the variety of laws throughout the nation, an employee should first consult with the appropriate state or federal agency that enforces the non-retaliation rules or see an attorney.

Weighing the Options

Even though some whistle-blowers have recovered substantial amounts in court, many others have ended up with nothing or had their careers or lives ruined. One must be able to prove the illegality, knowledge of the employer of the whistle-blower and resulting retaliation—and feel confident that the chance of success is worth the possible consequences.

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