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Has COVID-19 made it easier for employees to file ‘whistleblower retaliation’ legal actions in the US?

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
Authors
Sami Asaad
Sami Asaad
Partner - United States
FordHarrison LLP
United States
26.11.20
3
Employees in several US states who complain about employers’ failure to follow appropriate COVID-19 protective measures and who experience negative consequences following their complaint can pursue legal action for ‘whistleblower retaliation’. This article examines whistleblower protection in the US and the impact of COVID-19 and provides guidance for employers.

Recent class action litigation by New York court police demonstrates how long-standing state whistleblower-protection laws can lead to litigation for unwary employers during the COVID-19 pandemic. As states continue to roll out and revise return-to-work plans with protective measures to ward off COVID-19, employees who complain that employers are not following those measures to the letter might file whistleblower retaliation legal actions if they are subsequently terminated or otherwise negatively impacted at work. As employers review and implement return-to-work guidelines, they need to factor in this risk and take steps to mitigate it. 

Whistleblower protection laws 

Approximately half of the states have whistleblower protection statutes that protect employees from retaliation for exposing unlawful or unethical actions at work. The laws vary from state to state with regard to what employee actions trigger protection. Some states such as Connecticut, Florida, Michigan and Illinois protect employees only if they actually report a legal violation (or suspected violation) to government authorities. Other states, however, such as New Jersey, New York, or California, do not require outside disclosure. New Jersey’s Conscientious Employee Protection Act (CEPA), New York Labor Law s740, and California Labor Code s1102.5 protect workers from retaliation for internally raising concerns with management about allegedly unlawful conduct. Several states (e.g. New Jersey, California, Florida, and Illinois) even protect workers from retaliation for merely opposing or refuse to participate in conduct that they believe, in good faith, to be unlawful. 

While each state’s whistleblower law varies, one common feature is that they generally allow employees to take legal action if they experience an adverse employment action (such as termination) after engaging in legally protected activity. Many of these laws allow employees to seek significant damages along with attorneys’ fees if they prevail. Another common feature of these laws is that they generally do not limit the types of alleged legal violations that employees can oppose or threaten to disclose in order to be protected. For example, an employee who complains about alleged violations of municipal ordinances generally has as much right to bring a suit as one who complains about alleged violations of federal criminal statutes. 

One consequence of the COVID-19 pandemic is the proliferation of employment-related rules coming in the form of executive orders by state governors or guidelines by state and federal government agencies (e.g. the Centers for Disease Control and the Occupational Safety and Health Administration (OSHA)). Many of the executive orders, for example, contain workplace prohibitions or mandates that often are unclear. As a result, employers can find themselves facing accusations by employees of failing to comply with such orders. 

The pending New York legal action 

A union representing over 1,500 New York state court officers and its president filed a legal action in federal court against the court administration for allegedly failing to provide enough protective measures against COVID-19, including failing to properly sterilise courts, establish quality measures and provide adequate personal protective equipment. According to the complaint, Dennis Quirk, the president of the New York State Court Officers Association wrote to Chief Judge Janet DiFiore on 16 March 2020 informing her of a severe shortage of hand sanitiser, paper towels, masks and wipes. Subsequently, Mr. Quirk alleges that the defendants interrogated him, threatened him with suspension and possible termination of employment. 

Among other claims, the plaintiffs allege a violation of New York’s whistleblower statute, New York State Labor Law s740, and failure to provide personal protective equipment under OSHA regulation 29 C.F.R 1910.132(a). As a result of these alleged failures by Judge DiFiore and the Office of the Court Administration, the union claims that some of its members contracted COVID-19. The class action law suit claims at least USD 2 million in damages.  

Practical steps for employers 

One way to mitigate the risks of similar litigation is to review carefully the return-to-work guidelines applicable to each workplace to determine whether the guidelines can be fully implemented before reopening that workplace.  

Another step is to clearly communicate to employees all compliance measures being implemented to minimise the potential of employees making incorrect assumptions.  

Another important way employers can minimise the potential for retaliation (and discrimination) claims is to have clear employee performance criteria, workplace rules and a progressive disciplinary policy. Having clear rules and policies in place will allow an employer to demonstrate justification for any disciplinary action or termination of employment if necessary.