Reviewing Whistleblower Laws

Jennifer L. Parent
Director, Litigation Department & Chair Business Litigation Practice Group
Published: New Hampshire Business Review
July 7, 2017

Legal protections aren’t the same for all employees, but employers should take heed.

Whistleblowers are employees who raise or report concerns about an employer’s unlawful activity or conduct that is a danger to public safety or health. An employee may “blow the whistle” to someone within the organization or to the authorities.

Because such concerns or reports can be met with opposition or retaliatory conduct, whistleblower laws were enacted to protect employees who step forward. These protections are extended to employees even if the alleged conduct never occurred or was not illegal as long as the employee had made the report in good faith.

Numerous federal and state laws protect whistleblowers from an employer’s retaliatory conduct. For example, we often see environmental whistleblowers who report activity that violates laws protecting clean air and water or prohibiting the release of toxic chemicals or waste into the environment. And many of us may remember Sherron Watkins, who in 2001 first relayed her concerns about accounting irregularities to Enron CEO Kenneth Lay and the congressional hearings that followed from her actions.

Under New Hampshire’s Whistleblowers’ Protection Act, employers shall not harass, abuse, intimidate, discharge, threaten or otherwise discriminate against any employee regarding compensation, terms, conditions, location or privileges of employment because an employee:

• In good faith, reports or causes to be reported, verbally or in writing, what the employee has reasonable cause to believe is a violation of law

• Objects to participate in any activity that the employee, in good faith, believes is a violation of law

• Refuses to participate in any activity that the employee, in good faith, believes is a violation of law

• In good faith, participates, verbally or in writing, in an investigation, hearing or inquiry conducted into such allegations of a violation of law.

The nature and scope of the employee’s complaint factor into whether protections extend to any particular complaint.

In 2017, the NH Supreme Court, in Beverly A. Cluff-Landry v. Roman Catholic Bishop of Manchester, considered just this issue and agreed with the trial court’s dismissal of Cluff-Landry’s complaint against her former employer.

The school hired Cluff-Landry for the 2008-09 academic year and had annually renewed her teaching contract in 2009, 2010 and 2011. In August 2011, the school hired a new principal. That same academic year, the school enrolled a new student in the pre-K program who exhibited defiant behaviors, such as “daily kicking, hitting, slapping, punching, spitting, biting, screaming, throwing things and verbal abuse.”

As claimed by Cluff-Landry, in November 2011, she reported to the principal her concerns that the school could not adequately handle the student’s unsafe behaviors and that the student’s behavior was in violation of the student-parent handbook.

She claimed that the principal then began taking retaliatory actions against her, including issuing a letter of insubordination and placing her on a “teacher improvement plan” and finding she “needs to work on her ability to develop strategies for student behavior issues,” “must take responsibility for what happens in her classroom, as far as student behavior” and “has difficulty working with other teachers and teacher aids when they are in her classroom.”

The school did not offer her a teaching position for the 2012-13 academic year.

Cluff-Landry sued the school alleging a violation of the Whistleblower Act and raising other legal claims.

The Supreme Court explained that the act covers reports about what the employee believes, in good faith, is a violation of the law. It found that Cluff-Landry had made complaints about the school’s internal policies, including the student-parent handbook. Citing cases from outside New Hampshire, the court found internal policies or procedures of an employer do not fall within the scope of the act.

While the employer was successful in the case, companies should be mindful that an employee’s complaint or report may be covered under more than one federal or state whistleblower protection law or anti-retaliation provision of other laws.

For example, who the employer is (federal or state government or private employer), what state the person works in and the nature of the complaint all factor into what legal protections are available. Employees may also be protected under common law claims like wrongful termination. Thus, companies need to handle all complaints received with care.