What is a Whistleblower and How Are They Protected in Massachusetts?
A whistleblower is someone who reports incorrect, unethical or illegal activity in any private or public agency, organization or business. Whistleblowers take a risk that their activity may result in retaliation by the entity whose activity they are reporting. Both state and federal laws exist to protect genuine whistleblowers from retaliation such as being fired or pay deducted if the whistleblower is an employee. Not all whistleblowers are employees, but may instead be members of the public or have had dealings with the organization or agency and have reasonable suspicion that there is illegal activity going on.
Examples of whistleblowing
Most whistleblowers are employees who have
- been asked to do something illegal;
- observed illegal activities in their workplace; or
- detected illegal activities by their employer or senior management.
Not all whistleblowers’ exposures reach the attention of the mass media, but there have been through the ages some exceptional incidences of whistleblowing. These have often meant exceptional courage, honesty and persistence by the whistleblowers concerned. Some of the more famous examples include:
- Former tobacco executive, Jeffrey Wigand, who made an allegation about cigarette manufacturers intentionally adding addictive amounts of nicotine to their products. Despite attempts by the tobacco industry to deny Wigand’s allegations and even death threats against the whistleblower, the exposure eventually led to a settlement worth nearly $370 million.
- Nuclear plant worker, Karen Silkwood, exposed unsafe working conditions at her workplace in the 1970s. Her employee, Kerr-McGee, was eventually forced to pay compensation when an investigation confirmed that Silkwood and her home had suffered contamination with plutonium used in the power plant.
- A former pharmaceutical salesman, John Kopchinski, who worked for Pfizer, a multinational pharmaceutical company, alleged that the company had illegally marketed one of its products, a painkiller. At the time, this whistleblowing incident exposed one of the world’s largest healthcare fraud cases.
Retaliation by an employer against a whistleblower may be illegal
When an employee detects an illegal activity in their workplace, such as fraud, or unsafe workplace safety conditions, or has been asked to carry out unsafe or illegal activities by their supervisor or employer, they should attempt to obtain evidence of the illegal activity before taking the matter further. Much depends on whether the illegal activity detected was something occurring within the workplace and without the knowledge of the employer, or was taking place with the full knowledge of their employer. In the latter case, this should be reported to the relevant state or federal agency which will investigate the allegation. There are several laws, both state and federal, that are relevant to whistleblowing, and it is important to find out which agency to report the illegal activity to. It is not unusual for the employer to retaliate against the employee once the allegation of illegal activity has been notified to the employer.
The most common forms of retaliation for whistleblowing are firing the employee and refusing to pay wages that are due on termination of employment. In extreme cases, the whistleblower may face intimidation and violence.
Retaliation against an employee because they have made an allegation of illegal or unsafe activity at the employee’s workplace is illegal and an employee can file a complaint of retaliation with the relevant state or federal agency. An investigation, if it confirms that there has been retaliation, may lead to fines or other penalties imposed on the employer (in addition to the result of any separate investigation into the substance of the allegations by the whistleblower). Compensation may then be awarded to the whistleblower.
It is advisable that any employee who intends to make allegations of unsafe, or illegal activity at their workplace, understands how to report their allegations and knows how to file a complaint of retaliation if this follows the whistleblowing. An employment law attorney can help the whistleblower file a complaint of retaliation.
Legislation that protects whistleblowers in Massachusetts
In Massachusetts, the Massachusetts Fair Employment Practices Act protects whistleblowers if they have been fired because they have reported an illegal, unsafe or unethical activity by their employer. The Act is wide ranging as it also prohibits discrimination in the workplace as well as retaliation against employees because of doing something which is their right, such as apply for workers’ compensation. Employees who have suffered retaliation because they have been whistleblowers should file a complaint with supporting evidence of retaliation with the Massachusetts Commission Against Discrimination.
The state’s Massachusetts General Laws Chapter 149 Section 185 also provides protection for whistleblowers who report cases of unsafe workplaces or illegal activity by their employer if the employer is a government agency or entity at any level of government in the Commonwealth.
There are various federal laws that also protect employees or members of the public who blow the whistle on illegal or unsafe activities. For example, if you have faced retaliation because you have reported cases of discrimination at work, you can file a complaint with the Equal Employment Opportunities Commission (EEOC), which not only investigates cases of illegal workplace discrimination but also cases of retaliation such as whistleblowing.
The federal Whistleblower Protection Act specifically protects employees who work for a federal government agency or affiliated organization if they report illegal or unsafe activity in their workplace. An investigation following a complaint of retaliation may lead to relief or remedies such as restoration of employment, back pay, reversal of any suspensions and compensation for other damages claimed.
Other federal agencies may investigate cases of retaliation against whistleblowers such as the Department of Labor’s Wage and Hour Division (WHD), the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA).