A wide variety of whistleblower protection laws protect employees from retaliation when they disclose a violation of law, a danger to public health or safety, or some other type of misconduct.[1] For most of the laws, the employee will also be protected when he or she has a “reasonable belief” in the violation, danger or misconduct, even if the employee later discovers that the belief was incorrect.
This “reasonable belief” doctrine is essential to effective protection for whistleblowers. If employees had to be certain about the violation before they blow the whistle, they might delay their disclosure – allowing the violation or danger to continue. Worse, the employee might never become certain, and might choose not to make any disclosure at all. Members of the public could suffer from injuries caused by hidden dangers when the whistleblower protection law was meant to protect employees whenever they choose to come forward.
To establish a reasonable belief, an employee needs to show that (1) he or she sincerely believed that the violation occurred or will occur (the “subjective test”); and (2) that a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the wrongdoing occurred or is in progress (the “objective test”).[2]
The subjective test is usually met by the employee’s own testimony about what they believed. If an employee were to testify that they had no belief of any violation, then that employee would not be able to rely on the reasonable belief doctrine. They could still prevail, however, if the information disclosed was evidence of an actual violation. For example, if evidence shows that the real motive for firing an employee was retaliation for a disclosure they made, that employee can still win a retaliation case even if that employee did not perceive that the real motive was retaliatory. Keene v. Ebasco Constructors, Inc., 95-ERA-4 (ARB Feb. 19, 1997), p. 10 (“the presence or absence of retaliatory motive is provable by circumstantial evidence even if a witness testifies that he did not perceive such a motive.”).
In most cases where the reasonableness of an employee’s belief is at issue, the dispute is usually about the objective test. In such disputes, judges are often tempted to apply their own analysis of the circumstances to decide if they would think there was a violation. However, judges are supposed to consider whether a person of the employee’s knowledge, training and experience would reasonably reach such a conclusion.[3] Judges should not expect that workers would have the same training or experience that judges have.
In this context, whether the employer provided training to the employee, and what the content of that training was, could be particularly material. In Day v. Staples, Inc.,[4] Staples repeatedly gave Day training about the law, and explanations of how its actions were in compliance. The Court agreed with Staples that Day did not have an objectively reasonable belief of a violation. The Court said, “[a] company’s explanations given to the employee for the challenged practices are also relevant to the objective reasonableness of an employee’s belief in shareholder fraud. As the district court observed, Day’s complaints, which, assuming arguendo, initially reflected a reasonable concern, ‘ceased to be reasonable after Staples’ employees reiterated the rationales for the returns process, and assured Plaintiff that no fraud was being committed.’”
On the other hand, in Saporito v. Publix Super Markets, Inc.,[5] Publix had not given Saporito any training on the scope of the Consumer Product Safety Improvement Act (CPSIA).[6] Saporito worked in a milk bottling plant and had no idea that the CPSIA excluded food from its definition of consumer products (because the Consumer Product Safety Commission did not regulate food, which was instead regulated by the Food and Drug Administration, or USDA). So, when Saporito reported his concern that chemicals on the outside of the milk bottles was getting into the milk, the Department of Labor held that he had a reasonable belief he was disclosing a violation of consumer product safety standards.
Side-by-side, these cases show that employees who are lawyers, or who have advanced training on the law governing their workplace, will get little benefit from the reasonable belief doctrine. They would be expected to know what is or is not a violation, or at least know how to find the applicable law. Ironically, employees with the least training or experience would get the widest benefit of the reasonable belief doctrine.
Employees normally have no duty to investigate their concerns before making a disclosure that would protect them from retaliation.[7] If employees had a duty to investigate their concerns before disclosing them, their disclosures would inevitably be delayed and dangers to the public could persist when they could have been prevented. Employees could also get in trouble if they had a duty to investigate. They might feel pressured to access data they were no permitted to access (a violation of the Computer Access and Frauds Act), or their investigation might tip off perpetrators who could start covering up their misconduct.
The reasonable belief doctrine has no application to “participation clause” claims. For example, Title VII of the Civil Rights Act of 1964 (which prohibits most employers from discriminating on the basis of race, color, gender, religion or national origin), prohibits retaliation against employees who (1) oppose any unlawful employment practice (the “opposition clause”), or (2) participate in any proceeding to enforce the law (the “participation clause”). While the reasonable belief doctrine applies to retaliation claims under the opposition clause, it is not required for claims under the participation clause which protects the process of enforcing the law rather than the disclosure of any particular violation. Participation clauses speak in clear, absolute terms, and have accordingly been interpreted as shielding recourse to official proceedings, regardless of the ultimate resolution of the underlying claims on their merits.[8] Participation clauses are “exceptionally broad protections.”[9] Protection under a participation clause does not require any showing of a good faith belief in the disclosed violation.[10]
If you are an employee with concerns about wrongdoing in your workplace, it would be wise to preserve at home (if it is lawful to do so) the evidence that led to your concern. If you are concerned about whether you would be protected in the event of retaliation, it would also be prudent to consider whether you could file a complaint and start a proceeding with the appropriate state or federal law enforcement agencies.
To add strength to your retaliation claim, you will also want to consider if you could prove that the employer’s officials had knowledge of your protected activity. We will consider that issue in our next blog.
[1] A chart of over 130 federal whistleblower protection laws is at: https://www.taterenner.com/fedchart.php
[2] See, for example, Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (“an objectively reasonable belief in light of all the circumstances that a [] violation has happened or is in progress.”)
[3] Harp v. Charter Communications, Inc., 558 F.3d 722, 723 (7th Cir. 2009).
[4] 555 F.3d 42, 58 (1st Cir. 2009)
[5] ARB No. 10-073, ALJ No. 2010-CPS-1, Decision and Order of Remand (ARB Mar. 28, 2012)
[7] Yesudian ex rel. United States v. Howard Univ., 153 F.3d 731, 740 (D.C. Cir. 1998) (employees are protected while collecting information about a possible fraud “before they have put all the pieces of the puzzle together”); Wadler v. Bio-Rad Labs., Inc., 916 F.3d 1176, 1188 (9th Cir. 2019) (whistleblower is protected for raising concerns and has no duty to investigate them).
[8] See, e.g., Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264, 283 (4th Cir. 2015) (en banc) (observing that “effective [Title VII] enforcement could . . . only be expected if employees felt free to approach officials with their grievances[.]” quoting Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 66-67 (2006)).
[9] Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000).
[10] Glover v. S.C. Law Enforcement Div., 170 F.3d 411, 414 (4th Cir. 1999).