Whistleblower Statutes

• Author: Richard Leiter
• Pages: 315-335

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Whistleblower statutes protect employees when they find themselves in the difficult position of discovering their employer violating a law or in some way breaching the public trust. If the employer is warned of the problem but takes no action, or asks the employee to keep the situation confidential, the employee may be personally participating in a crime and may be exposed to a certain amount of personal liability. Sometimes, the right thing to do is to report the employer to the authorities (or, “blow the whistle”), but the employee may risk losing his job or position within the company. In this situation, the employee may be torn between a legal or ethical duty and perceived loyalty to his employer. “Whistleblower” issues arise in various circumstances, such as when an employee discovers that his employer that is a government contractor is overbilling the government, or when a public or private employer is discovered cutting corners on safety matters in violation of rules and regulations under state occupational health and safety acts. Other situations may involve employer practices of job discrimination, abuse of adult or juvenile patients in a health care facility, or medical malpractice.

In these situations, if an employee exposes an unsafe, illegal or unethical practice to the authorities, the employee may be the subject of punitive or retaliatory action, such as, dismissal, transfer to an undesirable job assignment, demotion, etc. Whistleblower statutes may prohibit dismissal or other retaliatory action against the employee. They may also provide for enhanced monetary awards to employees who “blow the whistle” on an unscrupulous employer.

State whistleblower statutes vary in a number of respects. Some states only provide explicit protection of public employees or those working for government contractors. Statutes also vary with respect to whom is protected or on whom the whistle may be blown. Some states extend protection to other co-workers who assist the whistleblower; some explicitly protect an employee who blows the whistle on fellow employees or another person or business entity with a business relationship with the employer.

Most states limit remedies that an employee may recover to actual damages, such as back pay or fringe benefits. In some cases, however, the employee is given a money award tied to the illegal or unethical activity exposed. In South Carolina, if the employee’s report or complaint results in a savings of public funds, s/he may recover 25% of the estimated net savings in the first year after corrective action is undertaken, up to $2,000.

It should be noted that in addition to state statutes, there are a number of federal whistleblower provisions which protect employees in much the same way. In fact, one state, Illinois, has recently taken the unusual step of repealing its whistleblower statute, apparently in deference to the federal law. There is some sound logic in this; if the state and federal laws are roughly equivalent the state can save valuable administrative resources in the repeal because it is no longer under an obligation to enforce its own law. Many federal laws include much harsher penalties for employers and greater rewards for employees who risk careers and livelihoods by reporting activity that is damaging to the public trust.

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Table 22: Whistleblower Statutes
State	Code Section	Prohibited Activity	Public or Private Employees	Opportunity for Employer to Correct?	Remedies	Penalties
ALABAMA	25-5-11.1 25-8-57	Terminating for filing a written notice of violation of safety rule under §25-5-11 (c)(4); termination for filing action against employer to recover workers’ compensation	Both	Yes, employer may not retaliate against employee or individual who tries to remedy violations of child labor chapter. (25-8-57)	Can not discharge, discipline, threaten, harass, blacklist, or in any other manner discriminate if employee disclosed information, refused to obey an illegal order, or revealed any violation of this chapter
	36-26A-1, et. seq.	Can not discharge, demote, transfer, or otherwise discipline regarding compensation, terms, conditions, or privileges	Public		Can bring civil action within 2 years of violation; court can award back pay, front pay, and compensatory damages
ALASKA	39.90.100 to .150	Discharge, threaten, disqualify or otherwise discriminate for actual or expected reports to a public body or for participating in court action, investigation, hearing or inquiry held by public body on matter of public concern	Public		Civil action for punitive damages as well as other appropriately found relief; a municipality isn’t liable if it adopts an ordinance that provides similar protections	Civil fine, maximum $10,000
	18.60.088, .089, .095	Can not discharge or discriminate if employee or representative files a complaint, institutes proceeding or testifies regarding a violation of safety or health standard that threatens physical harm or imminent danger	Private	Yes	May file complaint with commissioner of health and safety within 30 days of the violation to get reinstatement, back pay, and other appropriate relief	Civil fine, maximum $70,000

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State	Code Section	Prohibited Activity	Public or Private Employees	Opportunity for Employer to Correct?	Remedies	Penalties
ARIZONA	38-531 to 38-534	An employee who has control over personnel actions can not take reprisal against an employee for disclosure of information to public body on violation of any law or mismanagement, waste of funds, or abuse of authority	Public		May recover, under civil action, attorney’s fees, costs, back pay, general and special damages and full reinstatement or injunctive relief; may make a complaint to appropriate independent personnel board, school district governing board, or community college governing board of discharged for disclosing; excludes state university or boards of regents which have a rule or provision for protecting employees at time personnel action is taken; employee can appeal final administrative decision or get trial de novo in superior court	Civil penalty, maximum $5,000
	23-425 & 23-418	Can not discharge or discriminate if employee files a complaint, institutes a proceeding, or testifies regarding a violation of health or safety statutes	Both		May file a complaint with commissioner within 30 days of violation for reinstatement, back pay, and other appropriate relief	If willful or repeated violating: maximum $7,000 for each violation; minimum $5,000 for each violation
ARKANSAS	16-123-108, 107	Can not discriminate if employee in good faith opposed an act or practice made unlawful, or testified or participated in a proceeding regarding a violation of Arkansas Civil Rights Act	Both		Can file civil action within 1 year of violation to enjoin further violations, recover compensatory and punitive damages and court and attorney’s fees
CALIFORNIA	Labor §1102.5 to 1105	Can not prevent or retaliate against employee for disclosing to government or law enforcement agency when employee has reasonable cause to believe there’s a violation	Both		Can recover damages for injury suffered	Misdemeanor: individual, up to 1 year in county jail and/ or $1,000 fine; corporate, maximum $5,000 fine

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State	Code Section	Prohibited Activity	Public or Private Employees	Opportunity for Employer to Correct?	Remedies	Penalties
COLORADO	24-50.5-101 to 107	Can not initiate or administer any disciplinary action if employee disclosed information on actions of state agencies that are not in the public interest, unless employee knows information is false or discloses with disregard for truth, or disclosed information on records closed to public inspection or discloses information which is confidential under any other law	Public		If employee in state personnel system: may file a written complaint within 10 days with state personnel board to get reinstatement, back pay, restore lost service credit, records expunged, and any other additional relief as found appropriate by the board. If not or have already filed a complaint, but complaint denied: can bring civil suit to recover damages, court costs and other relief
	§24-114-101, et. seq.	Can not initiate or administer any disciplinary action if employee discloses information unless employee knows information is false, or information confidential under laws	Private	Employee must make good faith effort to provide supervisor or appointing authority or member of general assembly with information to be disclosed before disclosing	Can bring civil action; court can give damages, court costs and other appropriate relief
CONNECTICUT	31-51m, 4-61dd	Cannot discharge, discipline, or otherwise penalize because employee or his/her representative reports a violation or suspected violation or requested an investigation, hearing, or inquiry or if public employee reports to a public body concerning unethical practices, mismanagement, or abuse of authority, unless employee knows such report is false	Both		If employer violates statute, employee may, after exhausting all available administrative remedies, bring civil action within 90 days of final administrative decision or the violation for reinstatement, back pay, to reestablish benefits, court and attorney’s fees. If public, transmit facts and information to auditors of public accounts; if discriminate against can file claim within 30 days of incident with employee review board or in accordance with collective bargaining contract

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State	Code Section	Prohibited Activity	Public or Private Employees	Opportunity for Employer to Correct?	Remedies	Penalties
DELAWARE	Tit. 29 §5115	Can not discharge, threaten, or otherwise discriminate because employee reported to an elected official a violation or suspected violation of law or regulation unless employee knows report is false	Public		Civil action: for injunctive relief, actual damages, or both within 90 days of alleged violation
DISTRICT OF COLUMBIA	1-615.51, et seq.	Can not

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