Whistleblower Protection For Reports Of Child Sexual Abuse

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

In reaction to the Jerry Sandusky revelations in Pennsylvania, the Louisiana Legislature enacted a new whistleblower statute intended to protect employees from reprisal for reporting any fellow employee’s sexual abuse of a minor. A companion law now imposes criminal liability for an adult who fails to report the sexual abuse of a child to the authorities.

This new whistleblower statute, which went into effect on August 1, 2012, provides that “no employee shall be discharged, demoted, suspended, threatened, harassed, or discriminated against in any manner in the terms and conditions of his employment because of any lawful act engaged in by the employee or on behalf of the employee in furtherance of any action taken to report the sexual abuse of a minor child by any fellow employee to law enforcement, whether such fellow employee is a co-worker, supervisor or subordinate.” It further provides a cause of action against public and private employers “for damages associated with any action taken by the employee which is in furtherance of the protection of a minor child.” The statute entitles employees who prevail on such claims to treble damages, court costs, and attorney fees.  It does, however, specify that plaintiffs may not recover under the statute “if the court finds that the plaintiff instituted or proceeded with an action that was frivolous, vexatious, or harassing.”

While this statute ostensibly protects employees from retaliation for reporting the sexual abuse of a child, it should not change an employer’s obligation not to retaliate against whistleblowers. The general whistleblower statute, LSA-R.S. 23:967, which was enacted in 1997, already protects employees from reprisal for reporting “a workplace act or practice that is in violation of state law.” The new statute arguably provides greater protection to the employees in one respect—it does not require employees to first report the abuse to their employer to be protected from retaliation; whereas, the existing whistleblower statute states that “an employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of the law” reports the violation to the authorities. (Thus, without a requirement that an employee notify his employer, an employer might not necessarily know that a report has been made.) Aside from this difference, the new whistleblower protection statute imposes no additional obligations on employers but seems merely to provide an alternate cause of action—and additional damages—for employees claiming retaliation.

Significantly, for an employee with the option to sue under either statute, LSA-R.S. 23:968 is the more attractive choice. Like LSA-R.S. 30:2027, the whistleblower protection law for environmental violations, this new whistleblower statute imposes treble damages for retaliation against employees who report the sexual abuse of a child. This damage provisions renders a violation of this statute a costly mistake. Fortunately, the same actions that employers take to avoid liability under the existing whistleblower statute should protect them from claims under the new one. To avoid liability, an employer should refrain from retaliating against employees for reporting the sexual abuse of a minor to law enforcement, regardless of whether the employee first notifies the employer of the violation of the law.

Note: This article was published in the December 2012 issue of the Louisiana eAuthority.

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.

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