Whistleblowers have become increasingly common in the American workplace. These employees feel compelled to expose situations they consider wrong. And they risk being ostracized at work, or worse—being fired. A recent federal court decision affecting California once again underscores that both public and private employers should take the proper steps to avoid both liability and the public relations nightmares that often accompany mishandled whistleblowing cases.
Firefighter Reports Pornography On Firehouse Computer
Brad Hufford was a shift captain and the third-highest-ranking firefighter in the North Ada County (Idaho) Fire and Rescue District. While working on the firehouse computer, Hufford found hundreds of pornographic photographs downloaded from the Internet, some perhaps illegal. District policy prohibited the display of items with sexual content but didn’t address downloading pornography. Hufford immediately informed the fire chief of his discovery.
Instead of handling this internally, the fire chief asked the police chief, a good friend, to investigate. The police then interviewed nearly every firefighter. Not surprisingly, many were upset with Hufford. No firefighters were ever disciplined by the district or faced charges. But Hufford wasn’t so lucky.
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Whistleblower Repeatedly Reprimanded
Three months after the probe, Hufford received the first reprimand in his 12-year career for allegedly making inappropriate remarks, which a female firefighter overheard. However, one of the male firefighters most upset by Hufford’s report filed the complaint that led to this discipline, not the woman firefighter.
Hufford received a second reprimand for forcing open a station door when the office key was missing so he could call in a replacement for a sick firefighter. The fire district asked the police to arrest Hufford for this incident, but no charges were filed. He was ultimately fired for these and other minor infractions that had taken place as much as a year earlier.
Hufford sued district officials, claiming his termination violated his First Amendment rights and was in retaliation for reporting the pornography on station computers. District officials responded that they were immune from Hufford’s lawsuit under laws that shield public officials from liability for civil damages if their conduct doesn’t violate an employee’s clearly established statutory or constitutional rights.
Employee’s Rights Were Clearly Established
The Ninth Circuit Court of Appeals, which covers California, ruled that Hufford’s lawsuit could proceed. The court said that his actions involved an issue of public concern and that his interest in speaking out on the pornography matter outweighed the department’s interest in promoting workplace efficiency and avoiding workplace disruption. If Hufford weren’t permitted to proceed, the court ruled, no publicly employed supervisor or manager could report misconduct without fearing for their job. Neither the need for close working relationships nor the need for loyalty was more important than Hufford’s right to expose the downloading of pornography at the station.
Impact On Private Employers
Although this case involved a government employee, private sector employers can be subject to similar lawsuits if an employee is disciplined or discharged for exercising a legal right to report workplace wrongdoing. Note that whisteblowing cases often involve two problems—the situation that leads to the whistleblowing and the retaliation that can follow.
Handling Reports Of Misconduct
Take these steps to avoid such problems, both before and after an employee blows the whistle:
- Adopt a code of conduct. Have a clear code of business ethics for your company and distribute it to all employees to be sure they know what is acceptable workplace conduct. Have employees sign a document acknowledging they are aware of company policies.
- Establish reporting procedures. Company policies should encourage employees to report wrongdoing. Have a mechanism in place that allows employees to alert company officials about policy violations confidentially. Workers should be able to complain to an ombudsman, inside counsel or another designated representative other than their immediate supervisor.
- Respond promptly. If an employee alerts the company to a practice they consider objectionable, investigate immediately and thoroughly. Advise the worker of your investigation’s outcome and the action, if any, you plan to take.
- Protect the employee’s identity. Act to correct any wrongdoing that’s discovered without divulging the whistleblower’s identity, if possible. And never retaliate against the employee for alerting you to the problem.