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Employment Law and Whistleblowers

EMPLOYMENT LAW AND WHISTLEBLOWERS 1

Employment Law andWhistleblowers

Whistleblowers are people who report illegal undertakings orviolations of the public trust by their employers (“Protection forwhistleblowers,” 2016). The Whistleblowers Protection Act is thelaw that protects people who work for the federal government frombeing victimized by their agencies in case they reveal their illegalundertakings. Any agency that authorizes or threatens to takeretaliatory action against one of its employees who disclose anyinformation about its misconduct violates the WhistleblowerProtection Act of 1989. At the federal level, there are other lawsthat protect whistleblowers. Such laws include Sold Waste DisposalAct and Clean Air Act. These Acts protect employees who open up aboutthe violations by their agencies that are affecting the health of theworkers or polluting the environment (“Protection forwhistleblowers,” 2016). An employee can seek the intervention ofthese laws if his/her employer takes adverse action against him, forexample, by terminating his/her services as a result of him/hercomplaining or raising the alarm about an alleged violation of thevarious federal or state laws. Other laws that also protectwhistleblowers who raise specific concerns include the Safe DrinkingWater Act, Water Pollution Act, and the Energy Reorganization Act,among others (“Protection for whistleblowers,” 2016). .

Whistleblowers laws do not seek to protect only the people who workfor the government agencies. For example, the Sarbanes-Oxley Act isthe law that shields persons who work for public traded companiesfrom being unjustly punished by their employers (Kohn, 2016). TheSarbanes-Oxley Act of 2002 also known as “SOX” is one of thestrongest whistleblower laws. This is because it is not limited toavailing a legal redress for the wrongfully discharged or punishedworkers. The Act requires that every publicly traded corporationcreates an internal mechanism for reporting and addressing thecomplaints raised by its workers concerning illegal undertakings bythe company. For example, these mechanisms include the protection ofthe confidentiality of employees who report allegations of thecompany’s misconduct to the audit committee. The Security ExchangeCommission is mandated by the Sarbanes-Oxley Act with the duty ofdealing will all matters arising from the violations of the variouswhistleblowers-related provisions. The SOX Act gives room for theprosecution of any person who violates the differentwhistleblower-related laws. Under the SOX law, a person who takesharmful actions against any individual who provided to a lawenforcement officer certain truthful information regarding thepossible or the commission of any federal offense by his/her employercan be fined or imprisoned for a jail term not exceeding ten years orboth. On the other hand, any employee who loses in a civilwhistleblower case may be subjected to a criminal proceeding whichmay result in him/her being fined or jailed or both (Kohn, 2016).

Additionally, under the SOX Act an employee may file a complaint withthe United States Department of Labor seeking redress for the allegedunlawful retaliation by his/her employer. The worker must submit adiscrimination complaint to the U.S Department of Labor within 90days since the alleged retaliatory action took place. If theOccupational Safety and Health Administration is satisfied that thecase filed by an employee meets its criteria for unlawful adverseaction against a person who opened up about his/her employer`salleged illegal activity, it initiates investigations into the claim.If OSHA comes to the conclusion that the worker was subjected tounlawful punishment, it orders the employer to provide the plaintiffwith compensation which may include reinstatement, attorney fees andcost, and non-economic damages such as payment for emotional distressendured by the complainant. OSHA may also dismiss the employee’sclaims if it finds them as having no merit (Kohn, 2016).

However, an employee is protected from being subjected to unfairpunishment by his/her employer even if he/she is not certain that thelatter is engaging in illegal conducts or actions that violate thefederal or state laws. As such, the various whistleblower protectionlaws do not only protect employees whose reports turn out to be true.All that a worker needs to demonstrate with evidence is that he/shehad reasonable belief that his/her employer was engaging in anymisconduct that violates the law. The reasonable belief standard isassessed from two angles objective and subjective (Blacksberg,2016). In terms of the subjective standard, an employee mustdemonstrate that he/she firmly believed that his/her employer wasengaging in illegal activities. On the other hand, the subjectivestandard requires that a person proves that any neutral person couldhave come to the conclusion that the employer in question wasviolating the law. In the Burdette v. Express Jet Airlines, Inc, theplaintiff accused the defendant of making him work in dangerousconditions. However, the plaintiff failed to show that he believedthat his employer was putting his life at risk. Also, Mr. Burdettedid not demonstrate that a person with his experience and trainingwould have shared the belief that the employer in question utterlydisregarded his safety (Blacksberg, 2016).

On the other hand, in the Bechtel v. Administrative Review Board etal., the United States Second Circuit provided the burden-shiftingframework that should be applied to whistleblower retaliation claims.In the Bechtel v. Administrative Review Board et al., case, theplaintiff was working as the president of a company namedCommercialization for Competitive Technologies, Inc. He was firedafter he complained about the company’s failing to comply withcertain legal requirements which made him not to sign its financialdisclosure forms. When the complainant filed a whistleblowercomplaint with OSHA, the later initially ruled in favor of him.However, an administrative law judge overruled OSHA’s decision anddismissed the case, a ruling that was affirmed by the Departments ofLabor`s Administrative Review Board. When the plaintiff appealed tothe Second Circuit, the judge held that for a whistleblower claimfiled in line with the provisions of SOX Act to prevail, theplaintiff must prove with the use of evidence that he/she took partin a protected activity. Also, the complainant must demonstrate thathe/she suffered adverse personal detriment following his/heremployer’s retaliatory action following him/her engaging in aprotected activity. Lastly, the plaintiff must prove that his/herparticipation in a protected activity was the sole contributingfactor for the adverse personal detriment that he/she suffered(Pitney, 2013).

An employer may defend him/herself against being responsible forviolating any of the various whistleblowers’ protection laws byshowing that the complainant could have faced the same consequence,even without him/her opening up about his/her alleged misconduct. Forexample, an employer can demonstrate that he/she could have fired theemployee even if the latter did not engage in the protected activityunder the SOX or any other whistleblower protection law (Pitney,2013). For instance, the defendant can prove that the company wherethe plaintiff was working was planning on retrenching some workersand the complainant was part of the group that was to lose theirjobs.

I think that the whistleblower laws are very crucial in ensuring thatthe illegal operations of federal and state agencies, corporationsand employers are brought to the attention of the relevantauthorities. In the absence of the various laws that protectemployees from retaliatory actions by their employers if they revealthe latter’s wrongdoings, many workers would not be bold enough todisclose the many illegal activities that agencies and companiesengage in. Additionally, those who will be brave enough to revealtheir employer`s illegal undertakings would be victimized anddiscriminated upon. Such people may end up being fired, demoted ordenied promotions. The good thing with whistleblower law, such asSOX, is that the employee`s version of the story does not have to betrue for him/her to receive protection against facing retaliatoryactions. Under SOX Act, an employee only needs to prove that he/shehad a reasonable belief that his/her employer was engaging in someillegal activities. He/she also needs to demonstrate that a person ofsimilar experience or training as him/her could have come to asimilar conclusion.

References

Blacksburg, A. ( 2016). Why every whistleblower needs to understandthe reasonable belief standard. Accessed on November 23, 2016.http://www.kmblegal.com/whistleblower-blog/why-every-whistleblower-needs-understand-reasonable-belief-standard

Kohn, S. M. (2016). Sarbanes-Oxley Act: Legal protection forcorporate whistleblowers. Accessed on November 23, 2016.http://www.whistleblowers.org/index.php?option=com_content&amptask=view&ampid=27

Pitney, D. (2013). Second Circuit clarifies the standard for provingwhistleblowers retaliation claims. Accessed on November 23, 2016. http://www.lexology.com/library/detail.aspx?g=5319f6aa-e839-4d15-895e-738a0943344b

Protection for Whistleblowers. (2016). Accessed on November 23, 2016.http://employment.findlaw.com/whistleblowers/protection-for-whistleblowers.html