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Protection From Whistleblowers
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The 2008 Hawai'i Employment Law Seminar
PROTECTIONS FROM PROTECTIONS FROM WHISTLEBLOWERSWHISTLEBLOWERS
The The Olipares Olipares Verdict and BeyondVerdict and Beyond
Jeffrey S. Harris, Esq. & Kalani A. Morse, Esq.
August 7, 2008
Olipares v. C&C of HonoluluOlipares v. C&C of Honolulu
• Nancy Olipares: Executive Director of the Oahu Workforce Investment Board
• Accused the city administration of wrongfully using federal money to pay for a trip to Washington, D.C. by Director of the City Department of Community Services, Michael Amii and City Councilman Gary Okino
Olipares v. C&C of HonoluluOlipares v. C&C of Honolulu
• Olipares said she raised concerns about the city administration "improperly interfering and trying to influence decisions“ of the OWIB.
• She reminded the board that "federal law required it to maintain independence ... in order to perform its oversight functions."
Olipares v. C&C of HonoluluOlipares v. C&C of Honolulu
• Department of Community Services had federal workforce development contracts for services like youth training programs and a one-stop job placement center.
• Olipares put those contracts out for bid to comply with federal law requiring the OWIB to give private industry control over federal funds used for work-force development and training.
Olipares v. C&C of HonoluluOlipares v. C&C of Honolulu
• "And the city, from that moment on, began to go after Nancy," said David Simons, her lawyer.
• Director Amii began questioning her travel requests, sent her harassing e-mail for taking sick days, and revoked her authority to sign invoices.
• Olipares and her staff frequently worked overtime because Amii refused to release money to hire more people.
Olipares v. C&C of HonoluluOlipares v. C&C of Honolulu
• Ultimately, Olipares’ Contract as Executive Director of OWIB was not renewed.
• She claims that the City violated the state Whistleblower Protection Act.
• She asked for back pay, lost benefits and other damages
Olipares v. C&C of HonoluluOlipares v. C&C of Honolulu
The Jury awarded her:
$3,000,000
Employee Sources of Employee Sources of ProtectionProtection
Tort Claims
Statutory Claims
• Specifically protecting whistleblowers
• Non-retaliation provisions in statutes aimed at preventing other kinds of employer conduct
WHISTLEBLOWERS’ WHISTLEBLOWERS’ PROTECTION ACT (“WPA”)PROTECTION ACT (“WPA”)
• Protects employees who report violations or suspected violations of law by their employers – This includes reports to
the employer, not just public bodies
– Also protects those who participate in investigations of reported violations
Elements of a WPAElements of a WPAReporting Claim Reporting Claim
Employee must prove:1. He or she reported or was about to report a
violation of law or suspected violation of law
2. Suffered an adverse employment action 3. Causal connection between the adverse
action and the whistle blowingCrosby v. State Dep’t of Budget and Finance (1994)
Elements of a WPA Elements of a WPA Reporting Claim Reporting Claim
Employee must prove:
Elements of a WPA Elements of a WPA Reporting Claim Reporting Claim
Employee must prove:
Elements of a WPA Elements of a WPA ParticipatingParticipating Claim Claim
Employee must prove:
Affirmative Defenses to WPA Claims:
“Report was False”
Affirmative Defenses to WPA Claims:
“it would have occurred anyway”
HOW RETLIATION HOW RETLIATION LAWS WORKLAWS WORK
Elements of a Retaliation claim:
• Employee must show:
– He/she engaged in protected conduct
– He/she suffered an adverse employment action
– A causal connection between protected conduct and adverse action
Establishing the Causal Establishing the Causal ConnectionConnection
Established through
• Direct Evidence – Express statement that the employee is being
fired for protected conduct (rare)
• Implied Causation:– Decision-maker knew of protected activity
– Temporal proximity between the report and the adverse action suggests a causal link
Establishing the Causal Establishing the Causal ConnectionConnection
Implied Causation:
• Additional considerations
– Inconsistencies between explanations given for the adverse action
– Sharp contrast in treatment of employee before and after employer has notice of protected conduct
What is a Retaliatory Act?What is a Retaliatory Act?
• Adverse action for retaliation different from adverse action for discrimination– Burlington No. and Santa Fe Ry. Co. v. White,
126 S. Ct. 2405, 2415 (2006)
• Would it dissuade a reasonable employee from making or supporting a charge of discrimination?– Court held that retaliatory conduct need not be
employment related
Reasonable Employee Reasonable Employee StandardStandard
The plaintiff must show that a reasonable employee would have found the challenged action materially adverse
What Does What Does Materially Adverse Mean?Materially Adverse Mean?
The key question is whether the action would have dissuaded a reasonable worker from making or supporting a charge of discrimination.
Burlington Northern and Santa Fe Burlington Northern and Santa Fe Railway Company v. WhiteRailway Company v. White
Example of non-adverse action:– Supervisor’s refusal to invite an employee to
lunch
– Court called it “normally trivial, a non-actionable petty slight”
Example of adverse action:– Exclusion of an employee from a weekly
training lunch that contributes significantly to an employee’s professional advancement
TORT CLAIMSTORT CLAIMS
At-will employment
• Relationship can be terminated at the will of either party for any reason or no reason at all
• The Hawai’i Supreme Court has refused to imply a common law duty to terminate in good faith– Parnar v. Americana Hotels, Inc. (1982).
TORT CLAIMSTORT CLAIMS
However, the Hawaii Supreme Court has recognized a civil tort for termination of employment in violation of public policy.
- Parnar claims
TORT CLAIMSTORT CLAIMS
TORT CLAIMSTORT CLAIMS
• The Hawaii Supreme Court later restricted Parnar claims to:
– situations where a statutory remedy does not exist for the alleged public policy violation
• See, Ross v. Stouffer Hotel Co. (1994).
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERSREVIEW POLICIES
– Express and uniformly-applied discipline and discharge policies are a strong defense to retaliation claims
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERS
DISTRIBUTE POLICIES
– Give employees written copies of discipline and discharge policies
• Improved Employee Comfort Levels
• Full understanding of company’s requirements and expectations
• Awareness of specific systems for addressing their concerns
• Get signed acknowledgements
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERS
REVIEW POLICIES
• Company policy should expressly state that you comply with all applicable laws and regulations
• Complaint procedure should require employees to direct concerns about suspected violations to management
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERS
REVIEW POLICIES– Written procedures should explain how employees
should file a complaint • Policy should state that employees will not suffer retaliation
for making a complaint
– Provide employees with multiple avenues for making a complaint.
• Anonymous hotlines
• Supervisors
• Upper management access in the case of supervisor retaliation
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERS
TRAIN SUPERVISORS AND EMPLOYEES
• Bolsters integrity of your compliance programs
• Educates employees
• Helps prevent inadvertent violations
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERS
TRAIN SUPERVISORS AND EMPLOYEES• Supervisors and employees should be trained
separately – Allows employees may ask questions comfortably.
• Preserved training records– syllabus, sign-up sheets, and handouts
– Valuable evidence for future litigation
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERSINVESTIGATE AND
TAKE APPROPRIATE ACTION
• Take reports of suspected law violations seriously!
• Investigate promptly!
• Take employee concerns seriously – Less likely to report concerns
to outside agencies or file a lawsuit
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERS
INVESTIGATE AND TAKE APPROPRIATE ACTION
Inform complainants that
• The company is looking into their concerns
• Confidentiality cannot be guaranteed– Try to keep complaint as confidential as possible anyway
• Remind Complainants that the company prohibits retaliation – any acts perceived as retaliatory should be reported
immediately
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERSTHOROUGHLY DOCUMENT EMPLOYEE
PERFORMANCE
• What happens when we get hit with a retaliation or whistleblower claim? – Strengthen your defensive position
beforehand
– Consistently documenting performance problems
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERSBefore taking any disciplinary action,
answer the following questions:
1. What facts show the employee engaged in misconduct or unacceptable performance?
2. Do the employees excuses, justifications or alibis have any merit?
3. Are there credible witnesses to facts that the employee disputes?
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERSBefore taking any disciplinary action,
answer the following questions:
4. Will the employee admit that the misconduct or unacceptable performance justifies some sort of adverse action?
5. What rules or job functions are involved?
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERSBefore taking any disciplinary action,
answer the following questions:
6. What adverse impact did the employees misconduct or unacceptable performance have?
7. Are there any factors that might mitigate the severity of punishment (e.g. good record, long service).
TIPS FOR EMPLOYERSTIPS FOR EMPLOYERSBefore taking any disciplinary action,
answer the following questions:8. Are there any aggravating factors
(e.g. failure to accept responsibility or show remorse, obviously dishonest responses, prior disciplinary record)?
9. Have any similarly situated employees been treated differently?
10. Have those implicated by the whistleblowing influenced the decision maker?
THANKS!