How Whistleblower Claims are Changing the Workplace

Transcription

1 September 14, 2017 How Whistleblower Claims are Changing the Workplace James R. Erwin Lily B. Rao

2 Agenda Profiling the Whistleblower Whistleblower Statutes Brady v. Cumberland County and the Importance of Process Job Duties Exception Hypotheticals Minimizing Whistleblower Risk 2

3 Profiling the Whistleblower

4 MHRC Update Claims Filed By Basis FY 2015 FY

5 Who Are Whistleblowers? 5

6 Whistleblowers: Villains or Heroes? Personal Factors that Predict Whistleblowing: Increased tenure at company Increased pay Increased education Male High in extraversion Proactive personality Source: The Psychology of Whistleblowing, Dungan, Waytz & Young (Current Opinion in Psychology 2015) 6

7 Whistleblowers: Villains or Heroes? Other Motivations for Whistleblowers Good faith/crusaders Excuse for bad performance/screw-up Lawyer-motivated post-hoc justification for termination Others? 7

8 What Else Do We Know? 92% report inside the company first Only 20% ever report externally 1 in 5 are consultants or contractors not employees 70% of employees will report to their direct supervisor Only 58% of managers feel prepared to handle employee reports of misconduct Source: Embracing Whistleblowers, The Network (2015 Whitepaper) 8

9 Whistleblower Statutes

10 Maine Whistleblowers Protection Act To prove case of unlawful retaliation under MWPA, a plaintiff must show that: (1) she engaged in activity protected by the MWPA; (2) she experienced an adverse employment action; and (3) a causal connection existed between the protected activity and the adverse employment action. 10

11 Maine Whistleblowers Protection Act What is Protected Activity? The employee, acting in good faith reports orally or in writing to the employer or a public body what the employee has reasonable cause to believe is a violation of a law a condition or practice that would put at risk the health or safety of that employee or any other individual an act or omission that constitutes a deviation from the applicable standard of care for a patient by an employer charged with the care of that patient 26 M.R.S

12 Ever Expanding Whistles Report by executive that company should consider writing off an uncollectible debt Report by manager that a subordinate employee complained of harassment Report by food service worker that food being served residents is cold Report by nurse that coworkers are using their cell phones 12

13 Brady v. Cumberland County and the Importance of Process

14 Brady v. Cumberland County (Me. 2015) Brady detective at county sheriff s office Alleged disciplinary action was motivated by complaints he made about an internal investigation at the jail Demoted to patrol officer after internal investigation into misuse of police resources Later reinstated after union appeal 14

15 Brady v. Cumberland County (Me. 2015) Superior Court entered summary judgment in favor of Defendant Brady appealed Law Court reversed, holding that Brady had presented enough evidence to satisfy a prima facie case on each of the three elements of a MWPA claim. 15

16 Brady v. Cumberland County (Me. 2015) Superior Court entered summary judgment in favor of Defendant Protected Activity Adverse Employment Action Causal Connection 16

17 Brady v. Cumberland County (Me. 2015) Law Court reversed, holding that Brady had presented enough evidence to satisfy a prima facie case on the element of causation Evidence of causation: Differential treatment of Brady in workplace Disproportionate response to Brady s alleged violation Communication channels allowing Brady s complaints to reach decisionmakers 17

18 Brady v. Cumberland County (Me. 2015) No more burden-shifting Even if employer can show a legitimate, non-retaliatory reason for the adverse employment action, the employee can still survive summary judgment as long as they have enough evidence for a prima facie case 18

19 Job Duties Exception

20 Job Duties Exception Examining whether report was part of the employee s regular job duties or made in opposition to a practice of the employer HR manager who reports a suspected misclassification issue to VP Security officer who reports an interaction with a violent employee Supervisor who ensures subordinate s discrimination claim makes it up the chain 20

21 Pippin et al v. Sunburst Housekeeper complains of harassment to supervisor; Supervisor facilitates housekeeper s complaint to Manager accompanies housekeeper, as she reports complaint to Manager; helps housekeeper (from whom English is not first language) write her statement HR investigates and disciplines harasser; Supervisor thereafter informs HR that housekeeper and another employee are dissatisfied with the investigation.

22 Pippin et al cont. Supervisor fired a year later for misconduct. Per the policy manual and specialized harassment training delivered to Supervisor, Supervisor was required to ensure housekeeper s complaint was conveyed to Manager and HR. Supervisor never complained that she was a victim of harassment. Did Supervisor engage in protected activity?

23 First Circuit Limits Scope of Exception Question is not whether reporting was among Plaintiff s job duties, but what the employee s intent was in making the report. To be protected, report must be made to shed light on and in opposition to potentially illegal (or unsafe) acts. May be evidenced by words (e.g. express statements of opposition) or acts (e.g. going beyond what is required, being persistent). 23

24 Hypotheticals

25 Complaining vs. Whistleblowing 25

26 Hypotheticals Protected Activity Adverse Employment Action Causal Connection 26

27 Minimizing Whistleblower Risk

28 Whistleblower Tips 28

29 Whistleblower Tips Do not assume that an employee s complaint or conduct will not qualify as a whistle Find ways to identify and effectively manage problem employees Train management on how to handle complaints from subordinate employees Set up a standardized process to handle internal complaints Make process credible and easy to use Tell everyone about process Confidential/No Retaliation Anonymous is best 29

30 Internal Complaint Process Who will handle investigations? Ideally not supervisor Probe basis for report What did you see? When? Who? Document thoroughly to prevent after-the-fact characterization of routine concerns as protected reports. Inform reporter of results of investigation where possible 30

31 James R. Erwin Merrill s Wharf 254 Commercial Street Portland, ME Lily B. Rao lrao@pierceatwood.com Merrill s Wharf 254 Commercial Street Portland, ME PH / PH /