Tuesday, May 14, 2019

Ohio lawmakers seek to expand the protections of the Ohio Whistleblower Act

Laws protecting whistle-blowers from retaliation have a long and storied history in the annals of American law. Indeed, according to The Personal Toll of Whistleblowing, recently published in The New Yorker*, these laws date back 241 years to the American Revolution and the Second Continental Congress:

The first documented whistle-blowing case in the United States took place in 1777, not long after the signing of the Declaration of Independence, when a group of naval officers, including Samuel Shaw and Richard Marven, witnessed their commanding officer torturing British prisoners of war. When they reported the misconduct to Congress, the commanding officer charged Shaw and Marven with libel, and both men were jailed. The following year, Congress passed a law protecting whistle-blowers, and Shaw and Marven were acquitted by a jury.

Notwithstanding this long history, protected whistle-blowing is extraordinarily hard for an employee to establish under current Ohio law. The Ohio Whistleblower Act requires an employee to jump through myriad hoops to claim its limited protections.

  • The employee must be aware of a violation of any state or federal statute or any ordinance or regulation of a political subdivision that the employer has the authority to correct.
  • The employee must reasonably believes that the violation either is a criminal offense that is likely to cause an imminent risk of physical harm or a hazard to public health or safety, or is a felony.
  • The employee must first orally notify his or her supervisor or other responsible officer of the employer of the violation.
  • Following the oral notification, the employee must subsequently file with that same person a written report that provides sufficient detail to identify and describe the violation.
  • If, and only if, the employee first met these internal obligations, and if the employer does not correct the violation or make a reasonable and good faith effort to correct the violation within 24 hours after receipt of the oral or written notification, the employee may then file a written report with the prosecuting authority of the county or municipal corporation where the violation occurred or with some other appropriate person.

In my 22 years of practicing employment law, I’ve never seen an employee get this right and, therefore, successfully claim the protection of the Ohio Whistleblower Act.

Thus, Ohio H.B. 238 [pdf]. It seeks to expand significantly the protections of the Ohio Whistleblower Act. As proposed, this law would:

  • Broaden the scope of suspected unlawful activity covered as protected whistle-blowing.
  • Eliminate the requirement for both an oral and a written report.
  • Permit reports either to the employer or an appropriate government agency, and would eliminate the former as a prerequisite to the latter.
  • Expand anti-retaliation protections to include an employee’s refusal to participate in activities the employee reasonably believes are illegal.
  • Widen the definition of a retaliatory adverse action to include discipline, threats, and other discrimination.
  • Increase the statute of limitations from 180 days to one year.

This bill has only just been introduced, but it does have broad bipartisan support. Thus, it merits watching. And, with or without H.B. 238 amending the Ohio Whistleblower Act, employers still have to worry about the whistle-blower alphabet soup of federal law.

H.B. 238 notwithstanding, the best practice for employers is, and always will be:

  1. Don’t do anything illegal.
  2. Don’t protect those who do.
  3. Don’t retaliate when an employee blows the whistle, to anyone. 

* I don’t usually read The New Yorker. I found this story by googling, “whistleblower risks.” My high school AP English teacher required a subscription to The New Yorker for class. He joked that if we ever wanted to look like intellectual snobs, all we had to do was ride the train carrying the magazine with the masthead facing outward. I’m clearly still sensitive about the intellectual snob thing.

** Photo by Free To Use Sounds on Unsplash