Whistleblower Reprisal Violations
Nearly every state has laws protecting employees against whistleblower reprisal (WR) and mandates legal penalties, including criminal and civil liability, for engaging in acts resulting in a violation. A whistleblower reprisal violation is a crime, and the elements of the crime are defined in Kentucky Revised Statute 61.102
“The state and political subdivisions cannot retaliate, threaten or discriminate against an employee who, in good faith, reports to state officials or agencies, the General Assembly, the Legislative Research Commission, judicial branch or law enforcement agencies a violation or suspected violation of state, federal or local law or regulation, or mismanagement, waste, fraud or endangerment of the public health. Employees are not required to give notice prior to making such a report, but can be required to inform their employer of any official request to the agency for information and the substance of the testimony to be provided….”
Kentucky’s whistleblower statues apply to political subdivisions of the state, which include counties but not municipal law enforcement agencies.
However, according to separate court decisions, Louisville Metro and Lexington Police fall into the “county” category because, by statute, they are consolidated governments. This was recently demonstrated when a Louisville Metro employee was deemed to have been wrongly demoted for reporting suspected fraud, waste and abuse, and was subsequently awarded $300,000 by the courts.
Although the KRS explains the context of county and state government, and potential penalties for WR, it does not always provide clear guidance on when WR does or does not occur for investigators, or even executives.
Kentucky is not alone in the ambiguity of WR investigations. In March 2018, the Department of Justice Office of the Inspector General directed the FBI to improve training in whistleblower reprisal by implementing a “procedural form recommendation.” The recommendation indicated that “training on whistleblower protections does not provide sufficient guidance to FBI supervisors and managers concerning identifying and responding to potential whistleblowing activity under the U.S. code’s whistleblower statute and the Code of Federal Regulation’s FBI whistleblower regulation."
The consensus is that each statute protecting against retaliation has unique elements that a whistleblower must show to state a prima facie case of retaliation. Kentucky has case law demonstrating precedence in this requirement.
In the case of Davidson v. Commonwealth, Department of Military Affairs, 152 S.W.3d 247 (Ky.App.2004). The following elements provide both clarity and guidance on Kentucky’s whistleblower statutes:
(1) the employer is an officer of the state (or political subdivision); (2) the employee is employed by the state (or political subdivision); (3) the employee made or attempted to make a good faith report or disclosure of a suspected violation of state or local law to an appropriate body or authority; and (4) the employer took action or threatened to take action to discourage the employee from making such a disclosure or to punish the employee for making such a disclosure. The employee must show by a preponderance of evidence that the disclosure was a contributing factor in the personnel action. The burden of proof is then on the employer to prove by clear and convincing evidence that the disclosure was not a material fact in the personnel action.
Although the application of this element may appear clear, management officials also can unknowingly violate WR in common ways because of poor management practices.
One example of a management official inadvertently violating KRS is by creating a perception of WR because he or she failed to document poor performance, or they singled out an employee with inconsistent responses to problems or issues. For instance, if an employee has issues with timeliness, quality of work or some other ratable measurement and no action was previously taken to address these issues, deciding to start a paper trail after the employee initiates protected communication can create the perception of WR.
Since the burden is ultimately on the employer to prove, by clear and convincing evidence, that the disclosure was not a material fact in the personnel action, poor management practices can make proving a case that was not intended to be a WR case appear as though it was.
Public and private service agencies can develop practices to prevent incidents of WR. The Occupational Safety and Health Administration has established helpful measures for organizations including:
a leadership commitment to a professional working environment.
a true “speak up” organizational culture that frames a prevention-oriented program to encourage voicing concerns and fair resolution of issues.
independent, protected resolution systems for allegations of retaliation.
training to teach workers’ rights and provide information on available internal and external protection programs, and for managers to learn these along with related skills, behaviors and obligations to act.
monitoring and measurements that do not suppress reporting and that measure efforts and effectiveness of input to a speak-up, non-retaliation culture.
independent auditing to determine if a program is working.
The best practice for a management official is to make an informed decision, which could include talking with informed staff or legal representatives for an organization. Furthermore, knowing what whistleblower reprisal is, according to statute and established law, will go a long way in preventing violations. Moreover, taking advantage of enhanced leadership and management training will better equip decision-makers with real-world experience regarding precedence and best practices. WR is a serious and sometimes costly violation that can result in a criminal conviction coupled with civil penalties.
