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Whistle-blowers protected even if they defy complaint process

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in Employment Law,Human Resources,Leaders & Managers,Performance Reviews

Barbara Fleming, a nurse at a women's prison, complained to her direct supervisor that other employees were providing inmates medication under expired prescriptions.

When her oral complaint got no response, Fleming wrote a letter to the director of the medical department. The letter was returned with instructions to submit it first to her direct supervisor. Fleming had already run into a brick wall there, so she instead sent the letter up to her supervisor's boss.

Soon after, Fleming was fired for "willful disobedience," failing to follow the chain of command and poor performance. She had never received poor reviews.

Fleming sued. The company argued that her failure to follow the complaint process barred her from claiming retaliatory discharge. But the New Jersey Supreme Court said that employers cannot require a whistle-blower to follow a particular chain of command. (Fleming v. Correctional Health Care Solutions Inc., No. A-39-99, N.J. Sup. Ct., 2000)

Advice: It's never smart to retaliate against a whistle-blower, and this case shows that you shouldn't try to use a technicality, such as the worker's failure to follow channels, as an excuse.

Although this case was decided under New Jersey law, the court relied on cases from other states. In each of them, the employees' failure to follow a prescribed chain of command didn't bar them from claiming they were fired in ?retaliation. The emphasis is on whether the employee's method of bringing the complaint was reasonable.

So, unless you can prove a whistle-blower is truly disruptive and unreasonable in raising a complaint, don't take action.

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