By: Ethan White
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Avoiding the Pitfalls of “Near” Whistleblowers
Over the years, I’ve dealt with a number of what I would call “near” whistleblowers. I say “near” because, while the potential client may have attempted to expose wrongdoing, they failed to do it in a way to bring them within whistleblower status as defined under Illinois law. It can be the ultimate lose-lose for the potential client – they are out of a job because of what they complained about and they do not have a legal path forward as a whistleblower. But it is a scenario that can be avoided.
First things first – in the employment context there are really two kinds of whistleblowers under Illinois law – common law and statutory. Common law whistleblowers (more often referred to as retaliatory discharge cases) are protected in Illinois only under very limited circumstances. Although a slight simplification, in general a claim for common law retaliatory discharge exists in only two circumstances: when an employee is discharged for filing, or in anticipation of the filing of, a claim under the Workers’ Compensation Act; or when an employee is discharged in retaliation for the reporting of criminal conduct. The majority of the time a potential client reported (or attempted to report) something less than criminal activity and thus common law retaliatory discharge is not available. More importantly, common law retaliatory discharge requires actual discharge – mere discipline, demotion, transfer, etc. are not enough. So if an employee attempts to blow the whistle and the employer retaliates with something less than termination, the common law cause of action will not be of help.
Which brings us to the second kind of whistleblowing: statutory under the Illinois Whistleblower Act. The benefit of the Act is that it does not require discharge – retaliatory conduct by the employer is enough (for example, discipline, demotion, pay-cut, etc.). The most common types of whistleblowing under the Act are raised under two sections: § 15 and 20. Section 15(a) prohibits an employer from retaliating against “an employee who discloses information in a court, an administrative hearing, or before a legislative commission or committee, or in any other proceeding, where the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation.” Thus, to qualify, the employee typically must have disclosed the wrongdoing to someone or something outside of his or her employer. That is important, because the “near” whistleblowers have usually only disclosed it to someone within their organization, and thus section 15(a) provides little help.
Section 15(b) is similar, in that it prohibits an employer from retaliating against an employee for “for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation.” Again, the employee must have typically gone outside of their employer and made their report to a government or law enforcement agency – a step the “near” whistleblowers often overlook.
Next, Section 20 prohibits an employer from retaliating against an employee for “refusing to participate in an activity that would result in a violation of a State or federal law, rule, or regulation, including, but not limited to, violations of the Freedom of Information Act.” While this section does not require an employee to make an external report, it does require the employer to (1) require the employee to participate in some wrongdoing and (2) the employee’s active refusal to do so. Often “near” whistleblowers have only uncovered violations, not actually been asked to participate in the violation themselves, and thus Section 20 does not provide a cause of action.
Finally, while not totally settled under Illinois law, a number of courts find that a whistleblower under the Act must have identified a specific violation of a State or federal law, rule or regulation. Thus, when making their report, the whistleblower should make clear exactly what they think is being violated and how, with specifics.
As you can see, there is more to whistleblowing in Illinois than just blowing the whistle. Attention must be paid to who you are reporting the violation to, how you do it, and what you include in your report. If you witness or are asked to be a part of workplace wrongdoing, with the right foresight and planning, you can bring yourself under the protection of the Act in the event your employer retaliates against you. Ethan White and Emery Law have more than a decade of pure litigation experience, primarily focusing on employee-side employment disputes, including retaliatory discharge and whistleblowing claims under the Illinois Whistleblower Act. We have near daily courtroom experience in both state and federal courts. We have tried cases in DuPage County, Cook County, and the Northern District of Illinois and have litigated matters in nearly every other county in the Chicagoland area. We look forward to working with you and helping protect you from the lost opportunity of a “near” whistleblower.