Posted by marykeating on August 17, 2011 under Interesting cases, Wrongful termination, retaliation | 
The Court of Appeals just released a decision reinstating a state employee’s wrongful termination case. Tyson Lawson, a member of the Bowie State University Police Department objected to an arrest that he believed was constitutionally defective. He was fired for violating the chain of command in his reporting of the incident and his suspicions. He lost at his administrative hearing because the administrative judge believed that his report of wrongdoing was motivated by his personal interest in changing the department’s culture, rather than his reasonable belief that his disclosure evidenced a violation of law, abuse of authority, gross mismanagement, gross waste of money, or a substantial and specific danger to public health or safety.
The State’s highest court rejected that analysis. The employee need not “possess a purely altruistic motive for the disclosure.” The public welfare is served by having employees disclose violations of law and waste of public money. To obtain protection under the whistleblower law, “an employee must prove that a reasonable person would believe the disclosure exposes a violation,” not that the violation actually occurred.
Whistleblowers may well be the people who want changes to the department, or to government as a whole. They are not altruistic bystanders, they are on the inside, and usually in a better position to uncover abuses. They are probably well aware that blowing the whistle will cause them problems. By disallowing a focus on their motivations, the Court adds some welcome protection for people willing to speak out.
Posted by marykeating on July 21, 2011 under Interesting cases, Wrongful termination |
The Maryland Court of Appeals turned down an employee seeking damages after her employer terminated her. Debra Parks, a sales representative for a pharmaceutical firm, contended that she was fired in retaliation for her complaints about the company’s illegal marketing activities about a new pain drug, including the company’s alleged failure to tell the Food and Drug Administration of the results of a study. The complaint was dismissed before any discovery or trial. The court held that the employee could not bring a wrongful termination claim because she did not identify any clearly defined mandate of public policy that her termination violated.
The Court of Appeals explained again that wrongful termination is rarely a successful claim. It often comes up where an employee is put between the legal rock and hard place: when she has to choose between violating the law and keeping her job. So, when an employee was fired for reporting child abuse, and she was under a legal duty to report the abuse, that was wrongful termination. When an employee refused the property manager’s directive to trespass in leased apartments and snoop through their private papers, her termination was wrongful; another who refused to have sexual intercourse with an employee was protected; to have sex to keep her job was tantamount to engaging in prostitution.
Contrary to what many employees believe, or feel should be the case, whistleblowing on corporate wrongdoing is usually not a protected activity. Unless the employee reports criminal activity to the appropriate authorities, and is fired for that report, the firing goes unredressed.
The allegations brought by Debra Parks had plenty of support. In fact, Ms. Parks also notified the United States government of violations of federal law involving the same drug, and shared in a $85,000,000 payment made by the company to settle the claims with the federal government and some state Medicaid programs. The dismissal of her wrongful termination claim had to do with the lack of a crystal clear public policy protecting the employee, rather than whether the employer was doing the right thing.
