“Whistleblower” is one of those emotionally charged terms that send shivers down the spines of most employers; many are concerned that the mere specter of a whistleblower claim could cause tremendous exposure and horrific results. Some unscrupulous employees are aware of this and proceed to toss about whistleblower status as though it casts a magic shield that protects them from any scrutiny or discipline.
These two cases offer some practical guidance for employers, and hopefully alleviate the fear generated by whistleblowers. They also provide reminders that caution should be exercised when working with whistleblowers.
In the first case, from the federal Ninth Circuit Court of Appeals, the Portland (Ore.) Police Bureau was the defendant employer. Former recruit Lindsay Hunt filed a whistleblower lawsuit after resigning from her job. She claimed she was forced out after facing the wrath of her superiors when she reported misconduct by her supervisor.
Hunt reported some relatively trivial concerns – that her supervisor took free sodas from a convenience store on his beat, for example – as well as some very serious ones, including being ordered to destroy evidence, and harassment of citizens for no real reason. Hunt claimed that other training officers told her to knock it off, that she should look the other way, and stop making waves during her probation period.
However, the employer’s written documentation disputed this version of events, demonstrating that the employer reacted swiftly to Hunt’s concerns by assuring her that she acted properly by reporting her concerns, promising her that her reports would be investigated, and ultimately addressing them by disciplining her supervisor.
A jury trial ruled in the employer’s favor after a trial last year, and last week the three-judge appeals panel agreed with the ruling, in large part because of the strong documentation and swift action taken by the police bureau following Hunt’s reports.
The second case, from the Oregon Court of Appeals, also involved law enforcement – this time a deputy sheriff sergeant from Lake County. Stephen Lucas was a manager for the county jail in Lakeview, Ore., and was responsible for much of the conduct that occurred in the facility.
He investigated a troubling incident in which a deputy under his supervision may have required a female inmate to engage in sexual relations in exchange for contraband tobacco. After determining to his own satisfaction that the incident occurred, he reported this misconduct in the presence of his superior to the employer’s insurance representative.
Shortly after that report, Lucas was terminated, and he was not informed why at the time. After Lucas filed a whistleblower lawsuit, the employer defended the termination by alleging that he had cheated on an internal examination and encouraged another employee to do so as well.
Although the trial court initially dismissed the lawsuit, last week the Court of Appeals reversed the decision and reinstated the suit. The appeals court said that Lucas had articulated a whistleblower claim that should be heard by a jury, especially because, if true, the conduct he reported was in contravention of an important state public policy.
Both cases offer lessons to employers of what to do – and what not to do – when an employee decides to blow the whistle on some perceived problem.
First and foremost, it’s important for employers not to stick their heads in the sand when an employee lodges a complaint about misconduct at work, no matter how seemingly trivial or benign. Nothing will sink a defense faster than ignoring a problem, and nothing will give more credence to a whistleblower’s claim than taking the “conflict avoidance” technique.
Second, when a complaint comes in the door, handle it the way the Portland Police Bureau did in the Hunt case – acting swiftly to address the problem, assuring the whistleblower that the report is appreciated and launching whatever investigation is necessary to get to the heart of the problem.
Third, and perhaps most important, document actions and do so well. Perhaps no piece of evidence was as important in the Hunt case as the documentation created by the Portland Police Bureau memorializing the steps taken as a result of the complaints, clearly showing that they were being taken seriously.
Fourth, don’t shy away from the truth, even if the whistleblower has been causing problems in other areas of the organization. One of the issues in the Lake County case is that the employer did not clearly and convincingly inform Lucas about the reason for his termination at the time it occurred.
Although employers should rightfully feel apprehensive when disciplining a whistleblowing employee, they should feel confident about their actions as long as they are doing so as consistently as they would with any other employee, and only after independently confirming that the action needs to be addressed.
Rich Meneghello, managing partner of the Portland office of Fisher & Phillips LLP, is dedicated to representing the interests of management. Contact him at 503-205-8044 or firstname.lastname@example.org, or follow him on Twitter: @pdxlaborlawyer.