What Protection Do Whistleblowers Have? September 27, 2019

What Protection Do Whistleblowers Have?
By: Jack Moran

Generally speaking, the term “whistleblower” means a person who exposes potentially illegal or unethical activity within an organization.  In an effort to combat corruption and illegal conduct, there are dozens of federal laws that have some form of whistleblower protection.  Under Ohio law, however, an employee of an organization has to perform a very specific set of steps to qualify for protection under the whistleblower law.  In fact, employees are often shocked to learn that their efforts to “blow the whistle” on questionable conduct often falls far short of Ohio’s legal requirements.

First, Ohio only protects whistleblowing employees if the reported activity falls within a fairly narrow scope of conduct.  While the specifics of the law  (found at Ohio Revised Code Sec. 4113.52) are complex, in large part the conduct must be:

  • a violation of a statute, ordinance, regulation, work rule, or company policy, and
  • the employee reasonably believes that the violation is a criminal offense that is
    1. likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety,
    2. a felony, or
    3. an improper solicitation for a contribution.

The law doesn’t just restrict the type of conduct reported – it also dictates how the employee must report it.  First, the law expects that the employee orally notify the employee’s supervisor or “other responsible officer” of the perceived violation.  Most employees perform this step through common sense – if you see a problem, report it to the supervisor or management.  After all, if an employee notifies his or her supervisor or HR representative of potentially criminal conduct, isn’t that enough?  Under Ohio law, the answer is no.

Instead, Section 4113.52 says that employee also must “file with that supervisor or officer a written report that provides sufficient detail to identify and describe the violation.”  Despite the prevalence of sending short emails (which could satisfy the “written report” requirement), many employees still fail to perform this second step, because they either don’t know they have to complain in writing, or they are too concerned about the implications for their employment if they formalize the concern in writing.

The irony for the employee, of course, is that if the concern isn’t expressed in writing, Ohio law does not afford any anti-retaliation protection.  Section 4113.52(B) says that “[n]o employer shall take any disciplinary or retaliatory action against an employee for making” a report under the statute.  But this “whistleblower protection” is only afforded to employees who follow the precise requirements.  If an employee omits a step, or makes a report of conduct that doesn’t fall clearly within the scope of the law, then the employee doesn’t have “anti-retaliation” protection under Ohio’s law.

This distinction is also key for employers.  If the employee does comply with the statute, any disciplinary action taken against that employee will appear retaliatory if it occurs in the following days, weeks, or even months.  If the employee convinces a jury that retaliation occurred, the consequences could be substantial.  The law allows the employee to file a civil action in court and recover reinstatement to the same position that the employee held (assuming the employee was fired or demoted), back wages, full reinstatement of fringe benefits and seniority rights, costs of litigation, attorney’s fees, witness fees, and expert’s fees.

Given the stakes involved, it is important to recognize that, like many other terms, the word “whistleblower” has a unique and specific meaning under the law.  Understanding that meaning has important legal consequences for both employers and employees.

 

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Jack is an attorney in the employment, education and student defense, defamation and litigation  groups of McCarthy, Lebit, Crystal & Liffman.

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