In 2010, New Mexico’s Legislature enacted the Whistleblower Protection Act (WPA). Generally, the purpose of a whistleblower protection act is to protect employees who risk job security for the good of the public by disclosing unlawful and improper actions of public officials. Since it was enacted, New Mexico’s WPA is proving to be a popular and attractive cause of action for disgruntled public employees. The purpose of this article is to provide employers with a crash course on New Mexico’s WPA.
Does the WPA apply to you?: The WPA applies to public employers. As defined by the WPA, public employers include: (1) any department, agency, office, institution, board, commission, committee, branch or district of state government, (2) any political subdivision of the state, (3) any entity of the state specifically provided for by law, and (4) every office or officer of any entity listed in paragraphs (1)-(3).
A public employee can sue the entity for which he works as well as individuals within the entity who are considered “public officers.” Although the WPA does not define what makes someone a “public officer,” the New Mexico Court of Appeals considered that question and came to the conclusion that the mere fact someone is a supervisor does not make that person a public officer under the WPA. The test for determining whether someone is a public officer (and therefore can be sued directly under the WPA) is whether the person has autonomy and independence in his or her duties – meaning, not subject to ultimate decision- making authority of a higher-up supervisor.
What does the WPA prohibit?: The WPA prohibits a public employer from taking retaliatory action against a public employee for the following actions: (1) raising the alarm about a public employer’s unlawful or improper acts, (2) testifying about a public employer’s unlawful or improper acts in a public investigation, and (3) refusing to participate in the public employer’s unlawful or improper act.
Recently, the New Mexico Court of Appeals clarified that the WPA does not apply to grievances that primarily benefit a single employee. In its 2015 opinion in Wills v. Board of Regents of the University of New Mexico, the court affirmed dismissal of an employee’s WPA claim. The employee filed a lawsuit against his employer for breach of his employment contract and related claims. He was terminated four days after he filed the lawsuit. Thereafter, he amended his lawsuit and added a WPA claim in which he alleged that the University retaliated against him for filing his initial complaint. The district court and court of appeals disagreed with the employee and found that the employee’s personal employment grievance with his employer did not constitute a protected whistleblowing activity.
What awards can an employee obtain if she wins her WPA claim?: A public employer who violates the WPA will be liable to the employee for (1) actual damages, (2) reinstatement with the same seniority status that the employee would have had but for the violation, (3) two times the amount of back pay with interest on the back pay and (4) compensation for any special damage sustained as a result of the violation. In addition, an employer will be required to pay the litigation costs and reasonable attorney fees of the employee.
Three reasons the WPA is attractive to employees: The WPA is attractive to employees because the statute is broadly written and there is little authority interpreting it. This makes it hard for employers to get a WPA claim dismissed early on in the litigation. As a general rule, it is easier for a judge to dismiss a claim where there is clear guidance in the statute or direct authority on point. At this time, there is very little guidance or direct authority with respect to New Mexico’s WPA. Second, the WPA is attractive to employees because it is not an exclusive remedy. The WPA specifically provides that its remedies “shall be in addition to any other remedies provided for in any other law.” This means that the employee can add it to other claims, effectively expanding the types of recovery he can obtain against his employer. Third, the WPA is also attractive to employees because the protections of the act apply as long as the employee had a “good faith” basis to report the alleged unlawful acts. Stated differently, the employee does not need to prove that the employer actually committed unlawful or improper acts – simply that he had a good faith basis to make the report.
Defenses an employer has to the WPA: Most of the applicable defenses will depend upon the specific allegations of the employee’s claim. However, there are two standard defenses that will apply to every WPA claim. First, claims under the WPA must be brought within two years of the date on which the retaliatory action allegedly occurred. Claims brought by the employee after this limitation period will not be permitted. Second, an employer can defend against a WPA claim by showing that the action it took against the employee was not retaliation for the employee’s WPA activity but rather due to the employee’s misconduct, the employee’s poor job performance, a reduction in work force or other legitimate business purpose.
Make room on the bulletin board: Pursuant to the WPA, “Every public employer shall keep posted in a conspicuous place on the public employer’s premises notices prepared by the employer that set forth the provisions of the Whistleblower Protection Act.”