Posted: May 25th, 2022
Whistle-Blower Case Study Based on Oklahoma Law
It may appear common-sense that Janet and Darla are whistle-blowers; they saw something wrong at their workplace (another employee potentially stealing drugs and committing fraud), and notified their employer. However, while they may have effectively blown the whistle on potential fraud, they are also working in a state with “at will” employment laws, which states employers can fire employees for any reason (Bennett-Alexander & Hartman, 2014).
When the Federal court looks at the appeal they will need to assess whether or not Janet and Darla have met the requirements to be classified as whistle-blowers, and assess whether or not their dismissal could be seen as retaliation for whistle-blowing (Bennett-Alexander & Hartman, 2014). If classified as whistle-blowers they would be protected from retaliation by the employer. The case to consider is that of Groce v. Foster, 880 P.2d902 (Okla. 1994), which gave five exceptions which would prevent whistle blowers being fired under the ‘at will’ doctrine, the relevant exception requires them to show that they have reported an act that public policy would discourse, and that the discharge was undertaken in bad faith, out of malice, or out of retaliation.
Examining this; there is little doubt that drug fraud would be discouraged under public policy. Indeed, as required Janet and Darla are able to show that the actions they were reporting was also ready stated as against public policy in statutes. Therefore, the first element of the requirement is met.
The difficulty may be with the second element of the requirement. This is to show that the dismissal was linked to the whistle-blowing, and that it was either in retaliation, bad faith, or the result of malice. This can be a difficult assessment, as it requires the court to consider the underlying motivation of the person who dismissed them. The court may consider issues such as the proximity or potential relationship of the dismissal to the whistle-blowing event, and the reasons given by the employer for the dismissal. In this case the reasons do create a direct link to the event, as Janet and Darla did not follow the procedures laid down for whistle blowing, instead of reporting their suspicions to the accused employees immediate superior, they reported it to a different manager, effectivity breaching protocol. Janet and Darla argued it was undertaken in this manner as they believed the accused to have a good relationship with the supervisor, and they suspected the accusation may not be investigated appropriately. Unfortunately, common law does not make specifications in terms of this situation, so to assess the passion, the Appellant Court will start be interpreting the law literally.
The reasons given by the employee for dismissing Janet and Darla may be argued as logical; they have a required procedure, and they did not follow that procedure. The arguments regarding why they did not follow the procedure may not even be relevant, but at best they require the court to assume bad faith on the part of the supervisor. As the reasons do not clearly indicate bad faith, malice, or retaliation. As such, the link required is not established, and the court of appeal is like to assert that the employer is therefore within their rights under the ‘at will’ doctrine, and the appeal is likely to be rejected.
The legal passion of Janet and Carla is likely to be the same even if they were members of a bargaining unit, such as a Union. However, as members of a union there may have more options to support their ability to resolve the situation, potentially saving their jobs, without the need to resort to court action. By belonging to a union, there would have been less asymmetry of power between the employees and the employer; there are likely to be agreements in place mandating some type of mediation or grievance procedure to be followed when employment disputes arise between union members and the employer. Furthermore, the collective power of the unions’ members can also be leveraged to force or encourage medication, as unions may be able to threaten industrial action and/or strikes if they believe their members are being treated unfairly. This increased power may create a more conciliatory environment, which may have allowed the situation to be investigated internally and may have saved the jobs of Janet and Darla.
Bennett-Alexander, D; Hartman, L. (2014). Employment Law for Business. Mcgraw-Hill Education
Tromal, D R; Schilling, (2014). Managing Human Resources and Collective Bargaining, R&L Education
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