Enhanced Whistleblower Protections for Nonprofit Employees

by Tonkon Torp LLP

Tonkon Torp LLP

In the wake of Governor John Kitzhaber's resignation last year, the Oregon Legislature amended Oregon's "whistleblower" protection statute (ORS 659A.203) by expanding it to include Section 501(c)(3) nonprofit organizations that receive public funds from grants or contracts. Effective January 1, 2017, the new law protects employees and board members of nonprofit organizations who, based on a "good faith and objectively reasonable belief" that a violation has occurred, disclose "lawfully accessed information related to" a violation of law by the nonprofit organization. The new law also requires nonprofit employers to establish and implement a policy explaining an employee's rights under the statute and how to report any violation to state authorities.
The new "whistleblower" statute provides two protections:

  • An affirmative defense against any civil or criminal charge related to the employee's disclosure of certain documents, and
  • A protection against discrimination or retaliation against the employee for reporting or disclosing information that evidences a violation of law by the employer.

 The Affirmative Defense
If criminal charges or a civil lawsuit is brought against an employee for wrongfully disclosing information, the new law provides the employee an affirmative defense, which may be used to defeat the claims against the employee. To be eligible for the affirmative defense, an employee must show that he or she disclosed documents that the employee accessed lawfully to:

  1. A state or federal regulatory agency,
  2. A law enforcement agency,
  3. A manager employed by the nonprofit, or
  4. An Oregon-licensed attorney in furtherance of the employee's seeking professional legal services connected to the alleged violation of law;

and the employee has a "good faith and objectively reasonable belief" that the employer violated federal, state, or local laws, rules or regulations. The affirmative defense also applies to an employee's disclosure of information related to a coworker or manager if such a disclosure relates to the course and scope of the coworker's or manager's employment.
An employee loses the affirmative defense if the information he or she discloses is:

  1. Disclosed to a party not listed above,
  2. Is stated in a "commercial exclusive negotiating agreement" with the nonprofit, provided the agreement is not related to the employee's employment, or
  3. Is stated in a "commercial nondisclosure agreement" with the nonprofit, provided that the agreement does not relate to the employee's employment.

The affirmative defense protections also applied to "whistleblowing" board members.
Prohibition on Retaliation
The amended "whistleblower" statute also includes anti-retaliation protections that prohibit employers from discouraging employees from reporting violations of the law. It further prohibits employers from disciplining or threatening to take disciplinary action against an employee for disclosing information that the employee reasonably believes is "evidence of" a violation of the law or "[m]ismanagement, gross waste of funds or abuse of authority or substantial and specific danger to public health and safety resulting from action of the" employer.
Next Steps for Nonprofit Employers
In light of these changes, nonprofit employers should do the following:

  1. Employers should review and revise their "whistleblower" policies to ensure that they are consistent with the new law.
  2. Whistleblower policies should:
    • Encourage employees to report violations of the law to management and/or other designated authorities.
    • Offer an "open door" policy and/or describe the procedures for reporting concerns to management.
    • Notify employees of their rights under the new "whistleblower" amendments, including the grant of an affirmative defense.
    • Express that any employee who exercises his or her rights under the "whistleblower" laws will not be discriminated or retaliated against in any way.

You can find a copy of the amendment here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Tonkon Torp LLP | Attorney Advertising

Written by:

Tonkon Torp LLP

Tonkon Torp LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.