Protection From Whistleblowers

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 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."


• 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.


• "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.


• 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


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


Elements of a WPA Elements of a WPA ParticipatingParticipating Claim Claim


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).


However, the Hawaii Supreme Court has recognized a civil tort for termination of employment in violation of public policy.

- Parnar 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


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


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


TRAIN SUPERVISORS AND EMPLOYEES

• Bolsters integrity of your compliance programs

• Educates employees

• Helps prevent inadvertent violations


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


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?



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?



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).


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!

Protection From Whistleblowers

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