Termination for reporting a crime
The McArn Doctrine
Under state law, it is illegal to terminate an employee for reporting a crime, or for refusing to participate in a crime at work. This doctrine was announced in a case called McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993).
These cases require a pretty comprehensive understanding of the complete criminal code, because a number of things which are never prosecuted are nonetheless technically crimes - i.e., everything from adultery to your March Madness bracket - and most especially in government employment.
The firm's McArn litigation
The firm has litigated a number of these cases. For example, in one case, a teacher in a suburban school district was fired in retaliation for a number of complaints she made about discrimination against her students because of their national origin. In addition to violating Title VI and Title VII of federal law, this also gave rise to a McArn claim because, among other reasons, illegal retaliation is a crime under Miss. Code § 97-9-127.
In another case, there was a suit against an employer too small to be subject to Title VII, where the boss offered an employee money in exchange for sex. This created an environment so hostile she had to quit - which was a constructive discharge in retaliation for refusing to commit the crime of adultery (both were married) and prostitution.
Related: False Claims Act
If the crime at issue happens to be fraud against the government such as medicare fraud or self-dealing/kickbacks, then a qui tam or False Claims Act case may be advisable. These cases can allow the employee to recover significant damages proportional to the scope of the fraud.
This is a complex area on which I will be posting in the blog shortly. This page will be updated at that time.
Specific statutes protecting whistleblowers:
An industry-by-industry guide
Virtually everyone is covered by some OSHA safety regulation or other, but the statute protecting employees that blow the whistle on OSHA safety violations - Section 11(c) of the OSH Act - is famously anemic. It is hard to convince OSHA's whistleblower office that the law has been violated, and if they rule against the employee there is no further recourse.
But there are a number of other industry-specific statutes, many of which do provide extremely robust protections to whistleblowers. These are some of my favorite cases, and this page will provide a brief survey of the law in some of these special industries. This review is not comprehensive.
The strongest protections are in the following industries:
- Food processing (including chicken plants): Employees of food manufacturers, distributors, packers, and transporters are protected against retaliation for reporting a violation of federal laws and rules concerning food safety and accurate labeling (i.e., the Food Drug and Cosmetic Act), or for refusing to participate in any practice that violates these rules.
- Truckers: Truck drivers and others in the industry are protected against retaliation for refusing to violate any regulations related to the safety or security of a truck, or for reporting such violations. This can include exceeding axle weight allowances, and other issues.
- Nuclear power: Power plant employees and contractors/subcontractors are protected from retaliation for reporting violations of the Atomic Energy Act or any NRC regulations.
- Airlines: Air carrier employees and contractors/subcontractors are protected from retaliation for reporting violations of any laws related to aviation safety.
- Publicly-traded corporations: Employees of publicly traded corporations are protected from retaliation for reporting fraud or violation of SEC rules.
- Oil and gas pipelines: Employees working at pipeline facilities (not extraction) are protected from retaliation for reporting violations of federal laws related to pipeline safety and security, or for refusing to violate such laws.
- Financial institutions: Employees of banks, lenders, and other consumer financial institutions are protected from retaliation for reporting violations of Dodd-Frank or any CFPB rules or regulations.
- Public transit: Employees of public transit systems are protected from retaliation for reporting a hazardous safety or security condition, a violation of any federal law or rule relating to transportation safety, or any abuse of federal grants or public funds for public transportation. Employees are also protected from retaliation for refusing to work in a hazardous condition or in violation of federal law or rules.
- Railroad: Railroad employees are protected from retaliation for reporting a work-place injury or illness, a hazardous condition, a violation of federal law or rules concerning railroad safety, the abuse of public funds appropriated for railroad safety, or for refusing to work in a hazardous condition.
- U.S. flag vessels: Seamen are protected from retaliation for reporting violations of federal laws related to safety to the Coast Guard, or for refusing to engage in a task which would result in serious injury to a person.
In these cases, if the employee can show that the whistleblowing contributed in any way to their termination, then the employer must affirmatively prove by clear and convincing evidence that they would have fired the employee regardless of the whistleblowing - a difficult standard to meet.
Many of these cases can be tried in either federal court or in the offices of the administrative law judges in the Department of Labor. Although some of the ALJs are worse than others, on the whole the ALJs take their job seriously - and their sole job is, for the most part, protecting whistleblowers, so they really understand these cases.
It is a good forum to be in as an employee - so long as the attorney has experience with the forum and is able to manage the often breakneck pace of this kind of administrative litigation.
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