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Common Law Whistleblower Claims

—RMZ

Retaliatory discharge is an exception to the general rule that at-will employment is terminable at any time for any reason or no reason whatsoever. To prevail on a retaliatory discharge claim, the plaintiff must establish: 1) he or she was discharged; 2) the discharge was in retaliation for engaging in protected activity; and 3) the discharge violates a clearly mandated public policy. An employee’s probability of success often hinges on the issue of whether the termination has violated public policy.

The two most prevalent types of claims that have been found to violate clear public policy are: 1) claims alleging retaliation for pursuing a workers’ compensation claim and 2) those arising from a refusal to engage in illegal activities or for an individual reporting unlawful conduct within the company. A simple internal complaint to an employee’s supervisor triggers Whistleblower protections. Additionally, employers’ potential liability for common law Whistleblower claims is substantial as punitive damages may be awarded.

Employers should take preemptive measures in order to limit their potential exposure to common law Whistleblower claims. The following are steps that employers can take in an effort to reduce the probability of a successful retaliatory discharge suit: 1) establish an anti-retaliation policy that addresses internal complaints; 2) disseminate the policy upon hiring a new employee as well as including it in the company handbook; 3) train employees at the outset of their employment and periodically thereafter in order to both refresh and update their knowledge of the policy; and 4) have independent, third-party investigations conducted upon an employee complaint that include a full report and recommendations regarding potential disciplinary action.

Roberts McGivney Zagotta represents both employers and employees in disputes arising out of common law Whistleblower claims. Additionally Roberts McGivney Zagotta routinely conducts independent investigations after employees report complaints and works with employers to create and review employee handbooks addressing these and other day-to-day operations issues.