Whistleblower retaliation provisions in federal and state law are essential protections for employees who observe and want to bring to light wrongdoing on the part of their employers. Many of these whistleblower laws, including the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) and the Sarbanes-Oxley Act (SOX), recognize that it would not be enough to protect only those employees who report activity that turns out to be an actual violation of those laws.
Instead, to fulfill the purpose of these whistleblower protections and encourage employees who would not otherwise report suspected wrongdoing, these laws protect an employee who has a “reasonable belief” that their employer is breaking the relevant law. It would be neither fair nor realistic to expect employees to have an understanding of the ins and outs of complex legal frameworks, and so Congress decided to grant broad enough protections to encourage people to come forward when they think they have evidence of wrongdoing.
Two recent cases—one before the U.S. Department of Labor’s Administrative Review Board (ARB) and one in a Tennessee federal district court—serve as important reminders that a whistleblower employee must be able to point to some evidence to show their belief about illegal activity was reasonable.
Before turning to those cases, it is helpful to understand how courts generally have defined the reasonable belief requirement.
Overview of the Reasonable Belief Requirement
What makes a belief reasonable, in the context of whistleblower reporting? Courts look at an employee’s belief from two angles: subjective and objective.
First, did the person actually, subjectively, believe that the conduct they reported was illegal? It is not enough for a person to claim after she is fired to say that she believed, at the time, that she reported illegal activity. Courts have dismissed cases, including the Tennessee case discussed below, where the plaintiff could not provide evidence that she actually believed her employer engaged in illegal activities.
Even where an employee can convince a court that she really believed her employer acted illegally, that is not enough for protection against retaliation. Courts will then ask whether that subjectively held belief is “objectively reasonable” from the standpoint of a neutral observer. That is to say, whether a reasonable person in the same situation as the employee, with the same experience, would believe the activity she reported was illegal.
To sum up, if a court decides that the plaintiff subjectively held an objectively reasonable belief that her employee engaged in illegal activities, she is entitled to legal protections against retaliation for her reporting those activities.
I will now provide synopses of the two aforementioned cases in which whistleblower employees were unable to prove to the authorities that their beliefs about illegal activity were reasonable.
AIR21 Whistleblower Fails to Show Reasonable Belief
In the first recent case, Burdette v. ExpressJet Airlines, Inc., Alex Burdette, an airline pilot, filed a whistleblower retaliation complaint under AIR21 against his former employer, claiming that his employer terminated his employment in retaliation for his complaints that his employer put his safety at risk. In general, AIR21 protects pilots who complain about safety issues from retaliation.
However, when Mr. Burdette’s claim went before a Department of Labor Administrative Law Judge (ALJ), the ALJ dismissed his claim. Mr. Burdette appealed to the ARB and lost there as well. In upholding the dismissal of the claim, the ARB highlighted the fact that, while Mr. Burdette claimed to oppose an employer directive on safety grounds, he continued to participate in flights on that program. According to the ARB, Mr. Burdette’s actions showed that he did not in fact hold a subjective, good faith belief that his employer’s actions put him in danger. The ARB also stated that the plaintiff failed to establish that his alleged safety concerns were an objectively reasonable belief, as he “put forth no evidence that people with his training and experience would share his belief that safety would have been at risk” under the program.
SOX Whistleblower Fails to Show Reasonable Belief
In the second case, Sherman v. CBRE Grp., Inc., Lindsay Sherman, a finance manager who worked for real estate company CBRE, filed several claims against her former employer, including a SOX retaliation claim. The Tennessee federal district court that heard the case dismissed Ms. Sherman’s retaliation claim because Ms. Sherman failed to meet the reasonable belief requirement for protection.
Ms. Sherman had raised several complaints with her supervisor regarding the way the company billed a client. In reviewing the facts, the court found that Ms. Lindsay did not present evidence that showed that “she had a belief—reasonable or otherwise” that her employer’s activities were illegal. Instead, according to the court, “[a]t most, her complaints could be construed as disagreements about management style, efficiency, and competence” rather than illegality.
Takeaways for Whistleblower Employees
While whistleblower protections like AIR21 and SOX protect more than just employees who report actual illegal activities, an employee considering whether to make a complaint about her employer’s activities should be mindful of the reasonable belief requirement I have described here.
An employee who raises these sorts of complaints can take steps to help make sure she is legally protected from employer retaliation. For example, she can make clear to others when making her complaint that she believes the activities are illegal and why she believes that (i.e., what law it might violate). This would enable a court looking back over what happened to point to those statements and likely agree that the employee reasonably believed her employer broke the law.