October 13, 2011
By: Michael J. Neary
Companies often deal with employees who complain about issues in the workforce for their own self-interested reasons. It is easy for an organization not to consider these complaints as “whistleblowing” because it is clear to the employer that the complainer is not interested in protecting others, but simply in advancing his or her career. The motivations of the whistleblower, however, are not relevant when deciding whether the complaining employee will obtain the protections of Maryland’s whistleblower protection statutes. The Maryland Court of Appeals recently addressed this issue in Lawson v. Bowie State University.
Court of Appeals Holds That Personal Motivation Does Not Prevent Whistleblower Protection
In Lawson, the Court of Appeals held that an employee is not denied statutory whistleblower protections simply because the complaints were personally motivated. The employee in Lawson, a veteran of the Bowie State University Police Department, filed suit under the whistleblower protections of the State Personnel and Pensions Article claiming that he was fired after making disclosures about potential abuses by his fellow officers. To obtain the whistleblower protections, Lawson had to reasonably believe that the information complained about contained evidence of abuse of authority, gross mismanagement, gross waste of money, a substantial and specific danger to public health or safety, or a violation of law. During the administrative phase of the Lawson case, the administrative law judge (“ALJ”) determined that Lawson did not make protected disclosures under the whistleblower act because his complaints were motivated by his self-interested desire to make changes to the office and not because of a reasonable belief that the abuse, mismanagement, etc. was actually occurring.
In reversing the ALJ, the Court of Appeals relied on federal case law interpreting the whistleblower protections of the federal Civil Service Reform Act. Based on this body of federal law, the Lawson Court concluded that the central inquiry when determining whether an employee made a complaint protected by a whistleblower statute is whether an objective reasonable person with knowledge of the essential facts known or readily available to the plaintiff could reasonably conclude that the actions of the employer violated the whistleblower statute under consideration. Because the statutory language the Court interpreted is similar to many other whistleblower statutes in Maryland, the Court’s holding in Lawson is likely not limited to the whistleblower protections of the State Personnel Pensions Article. Moreover, if the Maryland legislature continues to pass new whistleblower protections that apply to private employers with language similar to the State Personnel Pensions Article, the Lawson case will undoubtedly play a role in how any such future whistleblower statutes are interpreted.
In the courtroom, the Lawson ruling in all likelihood will greatly limit the availability of summary judgment for employers on the initial question in a whistleblower case of whether the employee made protected complaints. As many litigators have experienced, courts are reluctant to grant summary judgment on questions of objective reasonableness.
Employers Should Evaluate Complaints Without Regard to Personality
Outside of the courtroom, the Lawson decision clarifies for management the need to evaluate objectively whether an employee has made protected “whistleblowing” complaints. Given the Lawson holding, employers should evaluate employee complaints without regard to the personality voicing the concerns. This can prove most difficult when the employee complaining has a longstanding, well known, and self-interested motive for making the complaints. Because of this, employers must strive to train their managers to take a step back and objectively look at employee complaints to determine the proper steps to take in response. If a complaint is not considered properly and filed in an employee’s personnel file, the employer will have difficulty evaluating the risks of adverse employment actions taken close in time to an employee’s complaint.
The proliferation of whistleblower statutes at the federal, state, and local level should compel all employers to implement strategies and practices to properly handle employee complaints. Establishing sound policies and consistently applying them will best position an organization to defend against whistleblower lawsuits.
Michael Neary is a litigator and appellate attorney at Lerch, Early & Brewer in Bethesda, Maryland who advises employers on how to save money, time and energy by avoiding litigation. He also counsels employers on compliance with federal employment statutes and regulations and their state and local counterparts. For more information on how to handle employee complaints to avoid whistleblowers claims, contact Michael at (301) 657-0740 or mjneary@lerchearly.com.
