When an employee blows the whistle
“Whistleblower” has been the word of the last couple of weeks after a Washington insider filed a whistleblower complaint alleging that President Donald Trump used the power of his office to coerce Ukraine to investigate a 2020 election rival and that the White House took steps to cover up the president’s actions.
The complaint prompted the U.S. House of Representatives to open an impeachment inquiry while causing some employers to examine their own whistleblower policies.
“A lot of our clients are taking a closer look and asking, ‘Do I have the right policies in place?’” said Ana Shields, principal in the Melville office of Jackson Lewis, a national law firm with a heavy concentration in workplace law.
Employers should have policies that encourage employees to report in good faith any alleged wrongdoing in the workplace without fear of retaliation, Shields said.
There are several laws – on the federal, state and local levels – that protect whistleblowers for alleging wrongdoing in a variety of areas, including fraud, harassment, discrimination and safety violations.
Many whistleblower protections, Shields said, show up in anti-discrimination and anti-harassment laws governing the employer-employee relationship, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act and the New York State Human Rights Law, among others, which contain anti-retaliation policies protecting people who allege workplace discrimination or harassment.
“Allegations of retaliation are very common after people complain about harassment or discrimination,” Shields said. Of the 76,418 charges received by the Equal Employment Opportunity Commission in 2018, 51 percent were for retaliation.
“Year after year, at least half the complaints the EEOC gets are retaliation complaints,” Shields said.
The False Claims Act, which dates to the U.S. Civil War, offers whistleblower protection for employees of government contractors who claim their employer is defrauding the government, said Kevin Mulry, a commercial litigation partner at Uniondale-based Farrell Fritz.
These employers “file actions on behalf of the government,” Mulry said, noting that such actions commonly center on Medicare or Medicaid fraud or construction projects involving public funding. “If the claim is ultimately successful, the whistleblower shares in the government’s recovery.”
The Department of Justice obtained $2.9 billion in settlements and judgments under the False Claims Act in the fiscal year ending Sept. 30, 2018.
In addition to the federal False Claims Act, there are state and New York City versions, as well, Mulry said.
New York Labor Laws 740 and 741 also provide protections for whistleblowers, said Gregg Kligman, an employment law associate in the Garden City office of Meyer, Suozzi, English & Klein, who noted bills were introduced in the state Assembly and Senate this year to expand the protections provided under these laws.
Labor Laws 740 and 741 prohibit termination, suspension, demotion or other retaliation against employees who report or threaten to disclose to a supervisor or public body that policies or practices of the employer are in violation of a federal or state law and create a substantial and specific danger to public health or safety, or that constitute healthcare fraud.
There are also a set of whistleblower laws enforced by OSHA that protect employees from retaliation for reporting various violations impacting workplace safety and health, as well as categories that include consumer products, the environment, transportation and securities laws.
“Every employer policy should encourage good-faith reports of policy violations or law violations without fear of retaliation and should include an open door policy such that employees feel invited to raise issues, which always leads to better communication,” Shields said. “There can always be better communication between the employer and employee. Sometimes the employee is very confident there is wrongdoing going on when there isn’t, and if they sit with the employer to discuss it, perhaps the employer can explain what is going on and clear up the matter.”
Many companies have a person who is designated to handle complaints, such as the human resources manager, or they may have a hotline to call, Mulry said. The steps to report wrongdoing should be communicated to employees.
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