Whistleblowing: When Are You Protected?
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While states differ in the details, whistleblowing laws generally protect people who report to proper authorities activities that are unlawful or harm the public interest. One unique feature about whistleblowing is its foul-crying aspect. The whistleblower is protected for doing the civic duty of pointing out the misdeeds of those in power. To merit this protection, the whistleblower must avoid crying wolf: Generally, whistleblowers are protected from retaliation only if they act in good faith and have a good faith belief that the information they report to authorities is accurate.
Some states protect whistleblowers who complain of any legal violation—that is, who complain that the employer has violated any law, regulation, or ordinance. Others limit whistleblower status to those who report violations of particular laws, such as labor laws or environmental protections. A play-fair provision in a number of state laws requires employees to tell their employer about the wrongdoing first, so the employer has an opportunity to fix the problem. These rules are summarized in the chart below.
The High Cost of Blowing the Whistle
The story of one of the most famous whistle-blowers, Karen Silkwood, was the inspiration for hundreds of articles, several books, and a heavily bankrolled motion picture.
In the early 1970s, Silkwood worked as a lab analyst in an Oklahoma Kerr-McGee plant, which manufactured plutonium pins used as fuel for nuclear reactors. Plutonium, a radioactive chemical element, is known to be highly toxic and carcinogenic. Silkwood, an elected union official and outspoken critic of Kerr-McGee’s health and safety practices, began collecting and recording information to substantiate her charges that employees at the plant were dangerously exposed.
In early November 1974, Silkwood was found to be contaminated with the chemical. Nine days later, while enroute to meet with a New York Times reporter and union leader to turn over her documentation of Kerr-McGee’s unsafe work conditions, Silkwood was killed in a car accident with suspicious overtones. The damning documentation she was alleged to have had with her was not recovered from the accident scene.
Silkwood’s estate sued Kerr-McGee for the injuries caused by the escaping plutonium. After several appeals involving esoteric issues of state and federal legal authority, the U.S. Supreme Court affirmed the award to the Silkwood estate of $10 million in punitive damages—damages designed to punish the wrongdoer and act as a deterrent—and an additional $5,000 in property damages to cover the cost of sanitizing her contaminated apartment. (Silkwood v. Kerr-McGee, 464 U.S. 238 (1984).)
State Whistleblower Laws
Whistleblower statutes attempt to protect against the too-common occurrence of employees getting fired just after speaking to authorities about some wrongdoing.
Coincidence? Maybe. What makes the firing questionable—and possibly covered by a whistleblower statute—is often the timing. Pay strict attention to when you were fired. Note whether it was soon after your employer found out that you reported the wrongful behavior. The shorter the time, the more likely that you are protected by a whistleblower statute.
There are a number of other questions you should ask to help determine whether you may be covered by a whistleblower statute:
- Did you complain to anyone at your own workplace about the wrongful behavior before going outside? If so, what was the response? Were you threatened? Were you offered special benefits for not filing a complaint?
- If your company has a policy of progressively disciplining employees—reprimand, probation, suspension, dismissal—was it sped up or ignored in your case?
- Were your whistleblowing activities specifically mentioned to you by your supervisor? By company management? By other employees?
- Have other employees been fired for whistleblowing?
- Did you notice management or coworkers treating you differently after you complained about the illegal behavior? Were you suddenly ostracized or ignored, passed over for promotions, given a less-attractive job assignment?
The more documentation you can produce—memos from management, dated notes summarizing conversations with coworkers, signed statements from other former employees—the stronger your case will be.