AM I A WHISTLEBLOWER? AM I PROTECTED?
Generally a whistleblower is defined as a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public. There are statutes created to protect these whistleblowers. However, each statute has its own criteria that must be met to be considered a protected whistleblower under that statute. Therefore, one must look each statute or law to determine if they are considered a whistleblower under that particular statute and thereby would be protected from retaliation by their employer. Below is a discussion of the different statutes and how one may qualify as a whistleblower under that statute.
TN Public Protection Act (TPPA) T.C.A. § 50-1-304: The TPPA is also known as ‘Tennessee’s Whistleblower Act.’ The TPPA “gives statutory protection to employees whose actions served to deter, expose, and stop organizational wrongdoing.” Williams v. City of Burns, 465 S.W.3d 96, 101 (Tenn. 2015). The TPPA applies to persons who are employed by the state, federal government, or a private employer. A claim under the TPPA requires 4 elements that must be shown: (1) the plaintiff was an employee of the defendant; (2) the plaintiff refused to participate in or remain silent about illegal activity; (3) the defendant employer discharged or terminated the plaintiff’s employment; and (4) the defendant terminated the plaintiff’s employment solely for the plaintiff’s refusal to participate in or remain silent about the illegal activity. Note: that the plaintiff must prove that the his/her employer terminated their employment solely because they refused to participate in or refused to remain silent about alleged illegal activities that their employer was committing.
TN Common law: Retaliatory Discharge: Tennessee has recognized a common-law claim for retaliatory discharge where an employee is discharged in contravention of public policy. Common-law retaliatory discharge is available to and only protects private-sector employees. Williams v. City of Burns, 465 S.W.3d 96, 109 (Tenn. 2015). Thus, if you work for the state or federal government you cannot file claim under common-law retaliatory discharge. “In Tennessee, the 4 elements of a typical common-law retaliatory discharge claim are as follows: (1) that an employment-at-will relationship existed [private-sector employer]; (2) that the employee was discharged, (3) that the reason for the discharge was that the employee attempted to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision; and (4) that a substantial factor in the employer’s decision to discharge the employee was the employee’s exercise of protected rights or compliance with clear public policy. Crews v. Buckman Labs. Int’l, 78 S.W.3d 852, 862 (Tenn. 2002).” Note that the plaintiff (former employee) is required to show only that retaliation for the protected conduct was a “substantial factor” in the termination of his/her employment and not the ‘sole’ factor. Williams v. City of Burns, 465 S.W.3d 101
Therefore, you are a ‘whistleblower’ under a common-law retaliatory discharge claim if you worked for a private-sector employer and were discharged because you attempted to exercise a statutory (legal) or constitutional right, or for any reason that violates a ‘clear’ public policy, and that was a substantial factor in your employer’s decision to terminate your employment.
Here are few examples of when an employee was discharged for exercising a statutory or constitutional right, the reason for the termination was a violation of public policy. First, reporting your employer’s alleged illegal activity is protected under the TPPA (a statutory right). Also, an employer cannot terminate you for exercising your rights under Tennessee’s Worker’s Compensation Law (statutory right). Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 445 (Tenn. 1984). “The Tennessee Supreme Court has noted typical cases in which an illegal activity implicates a public policy concern: “cases in which the employee was discharged for refusing to commit perjury, for insisting on obeying a lawful subpoena, for refusing to seek to be excused from jury duty, for refusing to falsely certify the required testing of consumer products, for reporting consumer fraud violations,” for reporting potentially life-threatening conditions caused by locking doors in a hotel laundry room, for filing a worker’s compensation claim, and for reporting alleged sexual harassment.” Drake v. Bio-Medical Applications of Tenn., Inc., U.S. Dist. LEXIS 40956* (W.D. Tenn. Mar. 26, 2012). On the other hand, under common-law, the regulatory infraction by the company on which the employee relied did not implicate fundamental public policy concerns and the employee’s refusal to drive the truck with a photocopy of the cab card did not serve to further an important public policy interest embodied in the law. Franklin v. Swift Transp. Co., 210 S.W.3d 521, 522 (Tenn. Ct. App. 2006).
TN False Claims Act, Tenn. Code § 4-18-104: “The Tennessee False Claims Act (TFCA) imposes liability on a defendant who knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the state or to any political subdivision. Tenn. Code Ann. § 4-18-103(a)(7) defines “knowingly” as any of the following: (i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information. Proof of specific intent to defraud is not required.” Cty. Emergency Communs. Dist. 16-5149 v. BellSouth Telcoms. LLC, 852 F.3d 521, 524 (6th Cir. 2017). For purposes of the Tennessee False Claims Act, the 4 elements of a false claim can be paraphrased as: (1) a statement that conceals a duty to pay the government; (2) the statement was objectively false; (3) the defendant knew the statement was false; and (4) the statement was contemporaneous with the duty.
Therefore, a ‘whistleblower’ under TFCA is an employee who reports to the appropriate authorities that his/her employer knowingly (actual knowledge, deliberate ignorance of the truth or falsity, OR acts with reckless disregard to the truth or falsity of the information) makes or uses false record or statement to avoid or decrease an obligation to pay, transmit money or property to the state.
State and Federal (statutes that provide the SAME protection):
TN Human Rights Act (T.C.A. §§ 4-21-301–408) & Title VII of the Civil Rights Act: The Tennessee Human Rights Act (THRA) provides that it is a discriminatory practice for an employer to fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of such individual’s race, creed, color, religion, sex, age or national origin.” Allen v. McPhee, 240 S.W.3d 803, 807 (Tenn. 2007). The plaintiff (former employee) must prove the following 4 elements to prevail on a retaliation claim under the THRA: (1) that the plaintiff engaged in activity protected by the THRA; (2) that the exercise of the plaintiff’s protected rights was known to the defendant; (3) that the defendant thereafter took a materially adverse action against the plaintiff; and (4) there was a causal connection between the protected activity and the materially adverse action.
Therefore, a ‘whistleblower’ under THRA when you, the employee had engaged in an action protected by the THRA, such as reporting discrimination or harassment to the human resources department, and then your employer fires you (adverse action) for reporting (whistleblowing) to the human resources department the alleged discrimination and/or harassment. In addition, the discrimination or harassment must have been based on the employee’s race, ethnicity, religion, sex (sexual harassment), age, or national origin.
The policy of interpreting the THRA co extensively with Title VII of the Civil Rights Act of 1964 is predicated upon a desire to maintain continuity between state and federal law. THRA claims are analyzed in the same manner as claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. §§ 2000e(1). Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 990 (6th Cir. 1999)
Title VII of the Civil Rights Act protects employees against discrimination based on certain specified characteristics: race, color, national origin, sex, and religion. Under Title VII, an employer may not discriminate with regard to any term, condition, or privilege of employment. Areas that may give rise to violations include recruiting, hiring, promoting, transferring, training, disciplining, discharging, assigning work, measuring performance, or providing benefits. Title VII applies only to employers in both the private and public sectors that have 15 or more employees. Employment policies and practices may be discriminatory under Title VII based on disparate treatment or disparate impact. Disparate treatment involves intentional discrimination by an employer. For example, an employer who takes adverse action against an employee or a potential employee because of an interracial association (i.e. interracial marriage) violates Title VII of the Civil Rights Act of 1964. Tetro, 173 F.3d at 990.Also, it is illegal for an employer to retaliate against you for opposing discrimination under Title VII, for participating in an EEOC investigation of a discrimination claim, or for making a discrimination claim yourself.
Therefore, a ‘whistleblower’ under Title VII when the employee had engaged in an action protected by the Title VII, such as reporting discrimination or harassment, and then your employer fires you (adverse action) for reporting (whistleblowing) to the human resources department or the EEOC the alleged discrimination and/or harassment.
First Amendment Retaliation – “In order to state a claim for First Amendment retaliation, a plaintiff must establish that: (1) he engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; [and] (3) there is a causal connection between elements one and two ‘that is, the adverse action was motivated at least in part by his protected conduct.'” Gillis v. Miller, 845 F.3d 677, 683 (6th Cir. 2017) (quoting Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012)). “If the employee establishes a prima facie case, the burden then shifts to the employer to demonstrate ‘by a preponderance of the evidence’ that the employment decision would have been the same absent the protected conduct.” Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202, 208 (6th Cir.2010).
First Amendment retaliation claim can ONLY be brought by a public employee, such as if you work for the state or one of this it’s municipalities, or the federal government. In Pickering, the Supreme Court held that the First Amendment provides protection to public employees to exercise the right of free speech without risk of retaliation by their employer if the speech in question is “on matters of public interest.” Pickering v. Board of Education, 391 U.S. 563, 568 (1968). Matters of ‘public interest’ generally include when a government (state or federal) official, public school official, or any public service employer has violated the law or committed acts that go against public policy, are all matters that the public would want to know about especially when its the public’s tax dollars that generally help fund these government over owned businesses. Therefore,”[t]he Pickering balancing test is used ‘to determine if the employee’s free speech interests outweigh the efficiency interests of the government as employer.'” Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir.2006). “Considerations involved in this balancing test include ‘whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.'” Rankin v. McPherson, 483 U.S. 378, 388 (1987).
Therefore, a public employee is considered a ‘whistleblower’ under a First Amendment Retaliation claim when you, the public employee, voice your concern either to the public or to the proper authorities regarding a matter of public interest and your supervisor terminates your employment for speaking out.
Federal False Claims Act, 31 U.S.C. §§ 3729 et seq. – The federal False Claims Act (“FFCA”), “is an anti-fraud statute that prohibits the knowing submission of false or fraudulent claims to the federal government.” United States ex rel. Bledsoe v. Community Health Sys., Inc., 501 F.3d 493, 502-03 (6th Cir. 2007). “The statute imposes liability upon anyone who, (A) knowingly presents or causes to be presented, a false or fraudulent claim for payment or approval; (B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; [or]. . .. (G) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” United States ex rel. Stratienko v. Chattanooga-Hamilton Cty. Hosp. Auth., U.S. Dist. LEXIS 182327, at *9 (E.D. Tenn. Mar. 28, 2014).
Under the FCA, an original source (‘whistleblower’) is “an individual: (1) with direct and independent knowledge of the information on which the allegations are based; and (2) who has voluntarily provided the information to the government before filing an action under the FCA which is based upon the information.” United States ex rel. Jones v. Horizon Healthcare Corp., 160 F.3d 326, 330 (6th Cir. 1998). Under the federal FCA a qui tam action, is a private party (the ‘whistleblower’) called a relator brings an action on the government’s behalf. The government, not the relator, is considered the real plaintiff. If the government succeeds, the relator receives a share of the award. Also called a popular action. The federal False Claims Act authorizes qui tam actions against parties who have defrauded the federal government. 31 U.S.C. § 3279 et seq. If successful, a relator in a False Claims Act qui tam action may receive up to 30% of the government’s award.
Therefore, a person is considered a ‘whistleblower’ under a First Amendment Retaliation claim when you have (1) direct and independent knowledge of the information on which the allegations are based; and (2) who has voluntarily provided the information to the government before filing an action under the federal FCA (i.e. a qui tam action) which is based upon that information.