Free governments across history have encouraged people to come forward when they see the law being violated. The United States is no different. Most states, including New Hampshire, have a statute affording certain protections to people who report wrongdoing, with such individuals normally referred to as “whistleblowers.” The basic idea behind all of these statutes is that no person should be punished for bringing attention to a violation of the law because it’s in the best interests of society as a whole for illegal actions to be brought to light.
The idea may seem simple, but in practice, the laws can be difficult to decipher. Various questions arise: Does there have to be an actual violation of the law, or is it enough that the whistleblower believes there was a violation? What if the whistleblower perpetrated the violation herself? What if there are other considerations in play that necessitate secrecy, like national security? We’ve seen that uncertainty play out recently with Edward Snowden and Chelsea Manning (who was recently released from prison). For answers to those types of questions, we often look to the courts, which are tasked with interpreting whistleblower statutes.
The New Hampshire Supreme Court did just that for our own whistleblower protection law in February when it issued a ruling in Cluff-Landry v. Roman Catholic Bishop of Manchester. The question put to the court in that case was whether the violation of a private employer’s internal practices and procedures constitutes a “violation of the law” that would entitle a whistleblower to protection. The court’s answer? No, it does not.
Background
“Mallory,” was a prekindergarten teacher at St. Christopher School in Nashua. During the 2011-12 school year, she had a difficult student who kicked, hit, slapped, bit, spit at, and verbally abused the other children. In November 2011, she told the principal that she was concerned the student’s behavior was in violation of the school’s student-parent handbook and that the school wasn’t adequately set up to handle such a student. The principal did nothing in response, saying only that the child might need to repeat pre-K.
Over the next several months, Mallory found herself in professional turmoil. She received a letter of insubordination on February 3. She was placed on a teacher improvement plan on February 22. The principal gave her a subpar lesson observation report on April 13. And on April 15, the principal informed her that she wouldn’t be offered a position at the school for the 2012-13 school year.
In May 2015, Mallory sued the school, alleging, among other things, a violation of New Hampshire’s Whistleblowers’ Protection Act. She argued that the school’s decision not to renew her contract was retaliation based on her protected activity of raising concerns about the school’s inability to handle the difficult pupil.
New Hampshire’s Whistleblowers’ Protection Act
New Hampshire’s Whistleblowers’ Protection Act, codified as RSA 275-E:2, states that no employer shall harass, abuse, intimidate, discharge, threaten, or otherwise discriminate against an employee with regard to compensation, terms, conditions, location, or privileges of employment because:
(a) The employee, in good faith, reports or causes to be reported, verbally or in writing, what the employee has reasonable cause to believe is a violation of any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States;
(b) The employee objects to or refuses to participate in any activity that the employee, in good faith, believes is a violation of the law; or
(c) The employee, in good faith, participates, verbally or in writing, in an investigation, hearing, or inquiry conducted by any governmental entity, including a court action, which concerns allegations that the employer has violated any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States.
In the case before the New Hampshire Supreme Court, the relevant portion is at the end of clause (a), where it states that the Act applies if an employee reports what she believes to be “a violation of any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States.” There must be a violation of the law (or a reasonable belief by the whistleblower that there was) for the Act to apply.
Court’s Decision
The court was tasked with determining whether Mallory’s report that the student’s behavior violated the school’s student-parent handbook, and that the school was ill-equipped to handle such a student, was enough to entitle her to protection under the Whistleblowers’ Protection Act. The analysis turned on whether a violation of the school’s internal policies and procedures (i.e., the handbook) could be considered a “violation of the law.”
Without much hesitation, the court determined that the allegations made by Mallory did not meet the requirement of reporting a violation of the law. The court’s reasoning was fairly simple: It had determined in several earlier cases that a private employer’s internal policies and procedures do not constitute “the law,” and it saw no reason to change that finding in this case.
Because Mallory never claimed that an actual law had been violated, she wasn’t entitled to the protections the Whistleblowers’ Protection Act affords whistleblowers. Simply put, the Act, reflecting the views of the lawmakers who drafted it, isn’t applicable when a private employer violates its own policies and procedures.
Key Takeaways for Employers
The court’s ruling in this case has different consequences depending on where you sit. If you’re a member of management who receives a complaint from an employee that the organization’s internal policies and procedures have been violated, you can be confident that you won’t be held liable under the New Hampshire Whistleblowers’ Protection Act if the employee later claims she was retaliated against for making the compliant. If you are an employee who has made or is considering making such a complaint, you should understand that the Act will not provide you any protection should your employer respond negatively to the complaint.
It’s vital, however, for employers to remember that liability in such cases may not arise solely under the Whistleblowers’ Protection Act. Even if you are confident that the Act doesn’t apply, you should be wary of ignoring an employee’s complaint or changing your treatment of her after she makes a complaint.
The legal landscape surrounding employers’ treatment of employees, including those who raise complaints of any nature, is treacherous, and you should consult a legal professional if a situation like this arises in your workplace.
Paul Lopez is an associate in Sheehan Phinney’s labor and employment group, and contributor to New Hampshire Employment Law Letter.