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Employees risk their jobs for the public good more often than you know

February 1st, 2014  |  Published in Blog

By Lorene D. Park, J.D.

When people hear the word “whistleblower” they likely think of the few individuals who made recent headlines or were immortalized in a movie (the names Serpico, Brockovich, and Silkwood likely ring a bell even years later). But there are many outside the media spotlight who impact our lives for the better, often putting their jobs on the line to do so. For example, a hospital employee who repeatedly protested that changes in requirements for training operating staff endangered patients (including having surgeries interrupted because staff could not identify surgical instruments) was fired. The CEO then told surgeons that she had committed a “heinous crime,” which he later admitted was not true. Rejecting the defendants’ legal challenges, a federal court ruled that she had sufficient evidence to proceed to trial on her wrongful discharge and defamation claims (Grivois v Wentworth-Douglass Hospital).

Here are some other recent examples of employees who faced a moral dilemma between keeping their jobs and reporting or opposing unlawful, unsafe, or other wrongful activities. While these everyday heroes may not ultimately succeed on their claims at trial, a federal court in each case determined that they sufficiently stated their claims or had enough evidence to go to trial against an employer for wrongful retaliation:

  • A truck driver who had previously been in a deadly accident walked off the job when he learned his truck was unsafe and the employer demanded that he drive it anyway. He later discovered the employer put a negative note on his driving record, making it hard for him to get a job with other companies (Maverick Transportation, LLC v U.S. Department of Labor).
  • A manager of a federal wildlife refuge who insisted that the Fish and Wildlife Service address a problem with staff alcohol abuse, which she believed led on employee to commit suicide, was forced to choose between reassignment to Anchorage or termination (Kerr v Jewell).
  • A bank employee was fired after reporting fraud and securities violations by her supervisor and the vice president of human resources (McEuen v Riverview Bancorp, Inc).
  • Two daycare workers who reported a coworker’s child abuse to the state were reprimanded and fired for purportedly violating the employer’s confidentiality policy and behaving unprofessionally (Norman v Bright Horizons Family Solutions, LLC).
  • A teacher and coach who opposed sexist behavior towards female staff and students was suspended, transferred, and ultimately fired for being unprofessional and insubordinate (Kirley v Board of Education of Maine Township High School District 207).
  • A turkey farm manager was fired after voicing concerns to her supervisor, to human resources, and to the chemical department about chemicals used on the farm (Pecore v Jennie-O Turkey Store, Inc).
  • An engineer for a government contractor was demoted and fired after complaining that the company was overcharging the government by having him charge his time to an account when the work he did on the account did not justify full-time hours (Hanson v Raytheon Co).
  • An HR director was fired after reporting to the CFO that the company misclassified IT technicians as exempt from overtime compensation, in violation of the FLSA (Kavanagh v CDS Office Systems Inc dba CDS Office Technologies, Inc).
  • A court administrator lost her job after complaining to a judicial conduct commission and the media about a state court judge’s sexual harassment. The county closed the court location where she worked and refused to rehire her in other positions (Eisenhour v Weber County).
  • A police officer who reported misuse of crisis intervention funds had an internal affairs complaint filed against him for insubordination (Hollenbach v Burbank).
  • A manager at a company that sells steel was fired after sending an email opposing a plan to switch to a cheaper (and allegedly inferior) grade of steel without telling customers (Beers v ER Wagner Manufacturing Co).

As these examples would suggest, average employees put their jobs at risk to protect the public’s interest more often than reported by mainstream media. If it weren’t for whistleblower laws, and other laws prohibiting an employer from firing or otherwise retaliating against an employee who reports, opposes, or refuses to participate in an activity that is unlawful or against public policy, such individuals would have no recourse for the retaliation they suffered. As it stands, each of these employees will at least get their day in court.

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Keep background investigations old school and stay off applicant Facebook pages!

April 16th, 2012  |  Published in Blog

Investigating an applicant’s background before hiring makes sense. For example, this helps ensure that employers hire individuals who are stable and well-suited for the job. Historically, employers used a variety of tools, including criminal history checks and reference checks to screen out applicants whose past conduct indicated future performance problems. Most recently, some employers are using Facebook and other social networking sites, and in some cases even demanding passwords for full access to an applicant’s account. This is a B-A-D idea. Practically speaking, one of the greatest risks of social media investigation is simply finding out too much information. Social networking sites can reveal race, age, religion, disability, military service and other information indicating membership in a protected class. Failing to hire an individual in a protected class after requiring access to a personal site makes defending a potential discrimination suit harder and more expensive. How can an employer prove that it did not actually use the information to which it demanded access?

Legislators have responded to the rising tide of public opinion against employers who demand access to social networking pages. On March 25, U.S. Senators Richard Bumenthal (D-CT) and Charles E. Schumer (D-NY) called on the EEOC and the DOJ to investigate the trend of demanding that job applicants turn over their passwords for social networking and email websites. In Schumer’s words, “Employers have no right to ask job applicants for their house keys or to read their diaries – why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?” State legislators are also taking up the cause, proposing legislation that generally makes it unlawful for employers to ask any prospective employee to provide a username, password, or other related account information in order to gain access to the individual’s social networking website. States considering such legislation include California (SB1349), Illinois (HB3782), Michigan (HB5523), Minnesota (HF2963), New York (SB6938), and Washington (SB6637). Maryland (SB433 HB964) has already passed similar legislation.

Other organizations are also responding to the trend. On April 10, the National Association of Colleges and Employers (NACE) issued its position that employers should not require or request that job candidates provide login information to personal social network accounts as a condition of employment. NACE represents the interests of nearly 8,000 professionals who recruit and hire college graduates for their work forces and career services professionals who counsel college graduates in the job-search process. According to Marilyn Mackes, NACE executive director, “NACE’s position is that this practice violates ethical standards.” In addition, Facebook has announced that it may consider legal action when employers require employees or job applicants to provide access to their private Facebook passwords.

If public opinion, potential lawsuits, and legislators proposing bills against accessing the social networking sites of applicants is not enough to make an employer go old school in background checks and other pre-employment inquiries, there is still the fact, which anyone who has used Facebook knows, that the majority of the information on there is irrelevant to job skills and in many cases outdated.

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