A whistleblower is a term used in employment law for any employee who raises concerns about unlawful conduct. Arizona has a comprehensive whistleblower law that protects whistleblowers.
This law makes it unlawful for an Arizona employer to terminate an employee who blows the whistle. There are, however, several things to consider before blowing the whistle.
1. Blow the Whistle to an Appropriate Member of Management
The employee MUST have raised their concerns to an appropriate member of management authorized to take action to address their concerns. Blowing the whistle to a co-employee is insufficient.
2. The Employee Must Have a Reasonable Belief that Arizona Law Was Violated.
The employee must have a “reasonable” belief that the conduct at issue may violate an Arizona regulation/statute or the Arizona constitution.
In other words, Arizona’s whistleblower law only gives protections to employees who blow the whistle on conduct that may violate Arizona law, not federal law.
3. The Employee Must Have Been Terminated or Constructively Discharged
Arizona’s whistleblower law only provides protections to employees who have been terminated or constructively discharged. Mere retaliation is insufficient, although certain types of retaliation could be sufficient to justify a constructive discharge.
4. What Is a Constructive Discharge?
A constructive discharge is a legal term that means an employee can, in some situations, resign and sue for wrongful termination, as if they had been terminated. However, the employee must be able to demonstrate that their working conditions were so intolerable that a reasonable employee in their position would feel compelled to resign.
An employee who has blown the whistle and feels compelled to resign should consult an employment attorney to help them submit a constructive discharge notice that complies with Arizona law. There are many specific requirements that must be satisfied, and it is a trap for the unwary to go it alone.
Among other things, the employee must submit a detailed written notice to the employer outlining all of the retaliation the employee has endured and why they believe it is occurring. The employee must then allow the employer 15 days to respond.
5. How Should an Employee Blow the Whistle?
Even though not required, an employee should always blow the whistle in writing. Typically, blowing the whistle via email is the best practice. That way, there is proof about what exactly was reported, to whom, and when.
6. What Is the Time Limit to Sue?
There is a one-year statute of limitations, which begins to run from the date the employee is terminated or constructively discharged.
7. What Damages Can Employees Recover?
Arizona employees can recover damages for lost wages, emotional distress, harm to reputation, punitive damages, and any other damages they suffered that are attributable to the termination. Unfortunately, employees cannot recover their attorney’s fees.
What About Federal Whistleblower Laws?
There are at least 45 federal whistleblower laws. In general, whenever Congress enacts a major piece of legislation, it often includes a whistleblower provision that protects employees who report their employer for violating the newly enacted law.
One of the more commonly asserted federal whistleblower laws is the False Claims Act. It prohibits employers from retaliating against employees who report the employer for engaging in fraudulent conduct that results in the federal government paying money to their employer under false pretenses. In many cases, the employer is knowingly making a false representation to the federal government and receiving payments from the federal government based on those false representations.
Fortunately for employees, the majority of the federal whistleblower laws do not require that the employee be terminated. Instead, certain kinds of retaliation are sufficient. Retaliation often takes the form of a negative performance review, a written warning, or demotion/transfer. In other words, the federal whistleblower statutes offer more protection to whistleblowers than Arizona law.
When Should You Consult an Attorney?
If you believe that your employer is engaging in unlawful conduct, you should contact an experienced employment attorney as soon as possible. Blowing the whistle is a serious matter, and there is a lot to know and consider. Employees should proceed carefully.