Now is a Good Time for Employers to Revisit Employee Whistleblower Protections

The scenario is commonplace: Employer, fed up with clear deficiencies in an employee’s performance, elects to discipline or terminate the employee. The employee sees the writing on the wall, and, just before the employer is about to discipline the employee, the employer learns that the employee has complained to state or federal authorities. The complaint could be about the employer’s treatment of the employee, specifically, or the employer’s business operations, generally. Before moving forward, the employer would do well to refresh its recollection of the various “whistleblower” and “anti-retaliation” provisions that the employee may later claim the benefits of.

1. Whistleblowing in the News

This week, the Occupational Safety and Health Administration (“OSHA”) issued a preliminary finding in which it determined that a Cleveland Hopkins International Airport employee was likely demoted from his position as a result of his complaints to the Federal Aviation Administration (“FAA”) about various operational deficiencies at the airport, including allegedly subpar efforts made to clear runways of snow and to de-ice planes before takeoff. The employee alleged that he is a whistleblower entitled to protection under the law and, on its face, he appears to have a decent argument - his demotion came less than a day after he notified the FAA of his concerns, and the FAA later validated some of his concerns. The employer, of course, argued that it intended to demote the employee regardless of his report to the FAA due to past performance deficiencies.

On a national scale, the new Trump Administration has responded to what it classifies as “leaks” concerning, among other things, former national security advisor Michael Flynn, by calling them “illegal.” Some commentators believe this signals a potential “war on whistleblowers.” If true, it would appear that the Administration’s crusade only applies to the White House thus far. Indeed, two weeks ago, the Department of Energy with the urging of the new Administration halted a regulation that allowed for civil penalties against federal nuclear contractors that retaliate against whistleblowers for reporting fraud.

2. Various Whistleblower Protections

While OSHA’s finding noted above is not final at this point, and while the seemingly conflicting signals coming from the new Administration are sure to be further explored in the coming weeks, these stories serve as a good reminder that employers need to tread lightly when employees (especially disgruntled employees and/or those with a history of performance problems) have reported alleged employer misconduct to state or federal authorities. Such employees may be entitled to whistleblower protection(s), and, if so, taking action against such employees – whether motivated by their “whistleblowing” or not – can have severe consequences for employers.      

There are numerous federal and state laws aimed at protecting bona fide whistleblowers. On the federal level, for example, protections apply under, among other things, the Consumer Products Safety Act, Securities and Exchange Commission regulations, various environmental laws, and  OSHA regulations. Similar protections apply under the “anti-retaliation” provisions of the Fair Labor Standards Act and the laws and regulations enforced by the Equal Employment Opportunity Commission. Anti-retaliation measures protect, for example, an employee’s valid complaint of employer or fellow employee conduct which violates Title VII of the Civil Rights Act of 1964 or the American with Disabilities Act. 

Under Ohio law, employees are protected as “whistleblowers” and/or from “anti-retaliation” in numerous ways. For example, under the common law (i.e., not statutory law), an employer may not lawfully discharge an employee for a reason that runs counter to the recognized public policy of the state. This might apply to an employee’s report of alleged employer wrongdoing to state authorities. This is a very limited and difficult to prove exception to the employment-at-will doctrine.

Additionally, Ohio has enacted a statutory whistleblower protection law (O.R.C. 4113.52). The law applies to employees’ reporting of certain criminal violations as well as violations of law, generally, that are likely to cause imminent physical harm or a threat to public safety. The law has various procedural requirements that a prospective whistleblower must follow in many instances in order to gain legal protection.

Employees in Ohio are also protected from anti-retaliation for reporting alleged violations of Ohio’s labor and employment laws to the Ohio Civil Rights Commission and Department of Commerce's Division of Labor and Worker Safety, Wage and Hour Bureau.

3. Advice for Employers

An employer that is found to have violated an employee whistleblower or anti-retaliation law faces steep consequences. These include, but are not limited to, government prosecution and the imposition of fines, employee reinstatement, damages, or other relief designed to make the employee-whistleblower whole, attorneys’ fees (both its own and perhaps that of its opposing counsel), and unwanted and distracting public scrutiny.  

It is imperative that employers familiarize themselves with the employee whistleblower and/or anti-retaliation measure that apply to them, whether federal or state (or even local in some municipalities). These add extra and potentially significant hurdles to employee discipline and review procedures, and employers must take care not to change an employee’s status or benefits as a direct result of the employee’s complaints to authorities (whether ultimately found to have merit or not).

Employers should direct questions or concerns they have about compliance with the whistleblower laws applicable to them to their Hahn Loeser & Parks Labor and Employment attorneys