Blowing the Whistle

In today’s environment, whistleblower claims are highly likely. Employers should not fear, though. As with most things, an ounce of prevention is worth a pound of cure. This article offers a primer on various whistleblower laws and provides tips on minimizing risk and potentially mitigating litigation costs. 

In today’s world, a “whistleblower” is someone who reports to management — or, in some cases, to state and federal agencies — his or her belief someone in the company has engaged in illegal conduct. Employers should be aware of the various federal and state whistleblowing laws that apply to their industries and workforces.

Federal Whistleblower Laws 

There are numerous federal statutes that prohibit terminating and retaliating against employees for “blowing the whistle.” Some of these include: 

• The Occupational Safety and Health Act (OSHA), which prohibits employers from retaliating against employees for exercising their rights, including raising a health or safety complaint with OSHA. 
• The National Labor Relations Act (NLRA) forbids employers from disciplining employees for engaging in concerted activity. 
• The Americans with Disabilities Act (ADA) mandates that “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by” the ADA.
• The Families First Coronavirus Responses Act (FFCRA) prohibits employers from discharging, disciplining or otherwise discriminating or retaliating against an employee who takes paid sick leave or expanded FMLA leave under the FFCRA, files a complaint or institutes a proceeding under or related to the FFCRA.
• The Fair Labor Standards Act (FLSA) makes it unlawful to discriminate or retaliate against an employee for exercising his or her rights under the statute. 

Arizona’s Whistleblower Laws 

In addition to the federal statutory schemas, many states and municipalities have their own whistleblower laws. In fact, as this issue goes to press, Philadelphia became the first city to pass a law prohibiting employers from engaging in retaliation against employees who blow the whistle on unsafe conditions that could expose them to COVID-19. While there are no such laws in Arizona, employers should familiarize themselves with Arizona-specific laws. 

Arizona has two whistleblower statutes, each with distinct complexities. The first species, sometimes referred to as a “refusal” claim, forbids an employer from terminating an employee because the employee reported to management his or her belief someone in the company is — or is planning on — violating an Arizona Statute or the Arizona Constitution. This same law also makes it illegal to terminate an employee because he or she refused to engage in conduct which that employee believes is a violation of an Arizona statute or the Arizona Constitution. This type of whistleblower claim, which applies solely to private employers, does not apply to violations of federal statutes or regulations. This statute also requires the employee to have been terminated or at least constructively discharged. 

The second Arizona whistleblower law applies only to state employers. That law prohibits employers from taking any “adverse employment action” against an employee who reports a violation of “any law,” mismanagement of state funds or abuse of authority. An adverse employment action is any action that is reasonably likely to deter employees from exercising their rights.

COVID-19 and the Whistleblower Statutes 

The current pandemic has employers on high alert as to the viability of potential whistleblower claims. And rightfully so; as the pandemic rages on, employers are left to navigate uncharted waters, many times not knowing the exact measures required to keep their workers safe. Employers should familiarize themselves with whistleblower laws and work to prevent claims. Here are some tips: 

• Never terminate an employee for complaining. Take the employee’s claims seriously and investigate them. 
• Stay up to date on the guidance published by various agencies. For example, employers should look to the CDC, OSHA and state-specific guidance for safety concerns. For issues regarding discrimination and workplace accommodation, look to the EEOC and any relevant state guidance. 
• Consider accommodation requests seriously. Even if an employee says he or she is fearful to return to work, make sure to identify the reasons for the fear — it may be an issue protected under the ADA. 
• Review, revise and reissue anti-retaliation, whistleblowing and reporting policies, as needed. 
• Administer polices in a fair and uniform matter. 
• Remind management on their responsibilities on taking all complaints — and specifically those involving COVID-19 — seriously. Also, consider training management on reporting procedures and policies, proper documentation protocol and other applicable laws. 
• Contact legal counsel as needed. Remember that it is much more cost-efficient to engage in preventive measures and seek counsel than to wait around for a lawsuit. 

We are living in unprecedented and frightening times. Employers should familiarize themselves with the statutes that apply to their workplace and industry and take steps to ensure they are ready when such whistleblower claims come knocking.  

Alejandro Pérez is a labor and employment partner a Jaburg Wilk. Fully bilingual, Pérez represents employers in litigation matters; provides advice and counsel on employment decisions; drafts and reviews policies, handbooks and contracts; conducts sensitive workplace investigations and audits; and facilitates training on various employment law topics, workplace norms, leadership, and diversity and inclusion.