Employers all over the country should be keeping an eye on the development of “whistleblower” protections in the states in which they operate. Most jurisdictions have some protection for employees who are fired for reporting serious corporate misconduct to their superiors or to outside officials. Laws vary, however, and courts and legislatures take different approaches to this exception to at-will employment, which remains the default rule in most states.
A recent federal appeals court case provided some clarity about how whistleblower protections will be applied under Kansas law. Specifically, the decision addressed what it means to report corporate misconduct, and who the report must go to in order to afford the reporting employee the protected status of a whistleblower. In this case, the employee claimed that co-workers were illegally discharging industrial waste into city sewers. He reported his concerns to various supervisors and the plant managers. That wasn’t good enough, the court said, because the employee knew that the supervisors and plant managers he reported his concerns to were part of the problem – he knew they were complicit in the alleged illegal discharge of industrial waste. In such a case, the court ruled, the employee had to report the misconduct to a “higher authority” not complicit in the alleged misconduct. It could be a higher authority inside or outside the company, but had to be someone other than those whom the employee knew were involved in the alleged illegal behavior. Because the employee hadn’t reported his concerns to a higher authority, he wasn’t a protected whistleblower and his complaint was dismissed before trial.
Although this case only applies directly to Kansas employers, it could provide an argument for employers defending whistleblower cases in other states. For a detailed look at the facts and law of this decision, see here.