Private-sector employees are protected from retaliation for refusing to engage in illegal behavior for their employer’s benefit.
Employers that want to terminate employees who have complained about pressure to engage in criminal activity must make sure the termination process is flawless.
It’s especially important to be able to articulate in very concrete terms an underlying, legitimate reason for the firing—one that can’t be mistaken as a pretext for getting rid of a troublemaker.
Anything less will almost certainly result in a messy retaliation lawsuit.
Recent case: Carolyn Gleason worked for Roche Laboratories as a pharmaceutical representative, marketing various drugs to physicians working at medical centers. Because the federal government tightly regulates pharmaceutical sales, Roche employees receive extensive training on how to sell within parameters set by the Food and Drug Administration (FDA).
One of the highly regulated meds Gleason marketed was Mycamine, a drug formulated to treat fungal infections. It was a tough sell, since other pharmaceutical companies had similar drugs on the market that were FDA-approved for more uses than Mycamine is.
Drugs must be FDA-approved before a pharmaceutical company can market them. However, doctors are free to prescribe a medicine to treat conditions for which the FDA didn’t specifically approve its use.
For example, some anti-seizure medications are also prescribed to treat bipolar disorder, even though the FDA never approved their use for that purpose. This is called “off-label” use, a practice that is widely accepted within the medical profession and pharmaceutical industry.
Gleason complained to HR and other Roche officials that her direct supervisor was pushing her to recommend Mycamine to her clients for off-label uses, something she considered illegal and unethical. Gleason claimed she had exhausted all legal means to sell the drug and couldn’t possibly bring her sales higher without doing something illegal.
Two days after she complained, Gleason was terminated. The ostensible reason was a recently discovered irregularity in her expense account reports. Roche said Gleason submitted expenses for a business trip she had, in fact, not taken.
Gleason sued, alleging she had been terminated in retaliation for refusing to engage in illegal activity and reporting the activity to the company. She said the Florida Private Sector Whistleblower Act protected her from retaliation.
Roche Laboratories argued it was within its rights to fire Gleason for submitting what it considered a fraudulent expense report. However, Roche couldn’t explain who made the termination decision or why it waited until two days after Gleason complained to fire her.
The court agreed that Gleason should get her day in court. It reasoned that the timing—coupled with the company’s inability to say who made the termination decision or why the expense report wasn’t a big deal two days before Gleason’s complaint, but was a firing offense two days later—made retaliation a real possibility. A jury will now decide if Gleason’s termination was retaliation. (Gleason v. Roche Laboratories, No. 3:08-CV-1172, MD FL, 2010)
Final note: Whistle-blower employees can base their cases on alleged illegal behavior of any kind, not just violations of Florida law.
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