Bar News - April 13, 2012
Labor & Employment Law: Blowing the Whistle: New and Improved Protections for Employees
By: C. Kevin Leonard
Since 1987, the Whistleblowers’ Protection Act (WPA), RSA 275-E, has provided limited statutory protections for employees who engage in certain "whistleblowing" activities. The New Hampshire Supreme Court has stated that the purpose of the WPA is to encourage employees to come forward and report violations without fear of losing their jobs. Blowing the whistle often means taking great risks. Amendments to the WPA enacted in 2010 offer employees new protections, which should enhance the purpose of the WPA.
New Direct Access to Court
In what is probably the most significant change from the original statute, whistleblowers now have a choice where to file a WPA complaint. Until recently, employee whistleblowers were limited to filing a complaint at the New Hampshire Department of Labor (DOL). If the whistleblower satisfied certain reporting requirements, then the employee could "obtain a hearing" at DOL. RSA 275-E:4, I. The only judicial involvement for a whistleblower complaint filed at the DOL was an appeal to the New Hampshire Supreme Court under RSA 541. RSA 275-E:4, II.
The amendments in 2010 end the DOL’s monopoly over WPA complaints by allowing whistleblowers the option of pursuing such a claim directly in court. A whistleblower can now bring a civil action within 3 years of the alleged violation. RSA 275-E:2, II. No administrative exhaustion requirement exists requiring the whistleblower to first file a complaint with the DOL as a prerequisite to being able to file in court. That is good news for employees because whistleblower cases filed at the DOL have a very low success rate. According to an October 23, 2011, article in the Union Leader, only 6 percent of 452 whistleblower complaints were successful at the DOL from 1999 to 2011.
The new judicial avenue through which to pursue a WPA complaint will likely result in a greater number of employees relying on the protections of the WPA and filing a statutory WPA claim in court. The WPA expressly provides that any common law rights are not "diminish[ed] or impair[ed]" by the WPA. RSA 275-E:5. As such, depending on the facts of a case, employees may be able to pursue a common law wrongful discharge claim along with a WPA claim in court. Unlike in a wrongful discharge claim, a prevailing party in a WPA claim is entitled to reasonable attorney fees and costs. RSA 275-E:2, II.
New Protected Whistleblowing Activity
As originally enacted, the WPA protects two distinct activities on the part of whistleblowers. RSA 275-E:2, I(a) protects an employee who reports what the employee reasonably believes is illegal activity. RSA 275-E:3 protects an employee who refused to follow an illegal directive. The amendments broaden the range of protected activity engaged in by employees that are often related to whistleblowing by including in protected conduct the whistleblower who "objects to or refuses to participate in any activity that the employee, in good faith, believes is a violation of the law." RSA 275-E:2, I(b).
New Prohibited Reprisals Against Employees
The amendments add protection to employees by expanding an employer’s list of prohibited adverse employment actions against whistleblowers. The original statute protected employees against being discharged, threatened or otherwise discriminated against in their employment. The WPA expands protection by prohibiting employers from taking actions that "harass, abuse,[or] intimidate" the whistleblower. RSA 275-E:2, I(a).
New Protections for Public Employees
The amendments also create a new complaint process designed to encourage public employees to blow the whistle on possible "fraud, waste, or abuse" in state or local programs. RSA 275-E:8, I. The WPA now protects public employees against being threatened, disciplined, demoted, fired, transferred, reassigned or discriminated in their employment for certain activities. RSA 275-E:9. Public employees are protected for filing a complaint with the DOL, or if the employee otherwise discloses or threatens to disclose activities or information that the employee reasonably believes are illegal. Unlike the original statute, the amendments now cover a whistleblower who reports "gross mismanagement or waste of public funds, property or manpower, or evidences an abuse of authority." A public employee is also protected for reporting a danger to the public health and safety even though not illegal.
The original statute offered limited protections to employees who risk whistleblowing. The 2010 amendments enhance the existing protections for all employees and extend new whistleblower protections to public employees. These changes should further the purpose of the statute, encouraging more employees to come forward and report violations without fear of losing their jobs, while more strongly discouraging employers from retaliating.
|C. Kevin Leonard
C. Kevin Leonard is a shareholder at Douglas, Leonard & Garvey, P.C. His practice includes plaintiff’s employment law. He is past president of the NH Chapter, National Employment Lawyers Association.