You’ll have to search long and hard to find a group of folks who love the great state of Tennessee more than my law partners and I do. Unfortunately, there is some legislation being proposed that is quite uncharacteristic of the values that make this state so special. Especially for those of you who work in, manage and/or own businesses.
Under proposed Senate Bill 2126/House Bill 1954, there are two general realities:
– Employees who “blow the whistle” on illegal conduct within their place of work will be virtually unprotected from retaliation; and
– Employers will lose internal control when it comes to handling illegal conduct that may be occurring within its operations.
Under current state law, an employee can blow the whistle on illegal activity in the workplace without fear of retaliation in two ways: (1) report illegal activity and/or (2) refuse to engage in illegal activity. And, if an employer uses the report or refusal as a factor in making the decision to take an adverse action against the employee, then the employee may recover economic and non-economic damages. Makes sense, right?
Well, the proposed bill would change existing law in several detrimental ways:
– First, it requires employees to prove that the report or refusal was the “sole cause” for the retaliation. That means that if an employer can point to, not prove, any other reason to discharge the employee, even if it is trivial (e.g. “we had a personality conflict…”), the employee is left unprotected.
– Second, if employees bring the illegal activity to the attention of management (Which almost always happens. And, sensibly so, I might add)…you guessed it, the employee is not protected. Instead, they are protected only if they go outside of management such as to a third party. Think about it, shouldn’t an employee feel secure in bringing this type of information to his boss without fear of losing his job? Further, as an owner or manager, don’t you deserve (or want) to know about the illegal activity in order that it may be stopped expeditiously? The proposed bill instructs employees to take the matters outside the company. Over time, of course, employees may learn to go outside the company more frequently. But, this will burden employers and regulatory agencies much more significantly than internal reporting.
– Third, this law actually encourages employers to retaliate quickly. If an employee dares bring a matter to the attention of higher management, but before going to an outside source, higher management is rewarded by firing them immediately. Is the employee protected? NOPE.
– Fourth, the economic relief for an employee who is fired for reporting or refusing to engage in illegal activity, is limited. This, in turn, rewards corporate wrongdoers at the expense of the blameless employee. Surely we don’t want to encourage any corporate misfits to calculate the financial risk of breaking the law only to find that the risked loss is less than the gain…
– Finally, this law will limit the types of illegal actions which can be the basis of a whistleblower claim. Strange…my parents taught me that wrong was wrong and right was right.
Some of you (if you’re still reading) may be asking, “okay Jonathan, what’s the silver lining?” Well, the bill hasn’t passed yet…get on the phone and talk to your representative.
*The information above is taken largely from some materials created by my partners and colleagues who are far more versed in these legislative issues than I. With some commentary thrown in, I wanted to highlight some of the points I find to be particularly alarming. Feel free to contact our office if you would like some more information.