Berks County Bar Association The Berks Barrister Fall/Winter 2019 - 6

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Whistleblower
Protections

in Pennsylvania Law
By Joel Ready

O

ne might have thought that the departure of our former
fearless leader Don Smith would have led to a decline in
The Berks Barrister articles about impeachment. Yet, here
I am again, tasked with dancing along the line between political
headlines and their legal ramifications. As a political junkie who
tuned in and out of the House Intelligence Committee's public
hearings, Executive Director Kori Walter called and asked: "What
happens if these whistleblowers lose their jobs? And what about
whistleblowers in general? And can you find a way to write an
interesting lead for it?"
Well, Mr. Walter, I'll try. But unfortunately, for private worker
whistleblowers in Pennsylvania, the options are extremely limited.
Pennsylvania is an "at-will employment" state, so whistleblowers
can often be fired just like anyone else. Pennsylvania courts have
recognized a "public policy" exception to the at-will employment
doctrine for those forced to commit a crime by an employer,
or who are forced by an employer to do something statutorily
required for that individual. But these exceptions have been
read narrowly thus far-only where someone is truly statutorily
required to make a report is such conduct typically protected, and
no "special damages" are authorized by statute as a general matter.
This area is ripe for litigation.
As lawyers understand, the "attorneys' fees" provisions of
statutes often act as the keys to the courtroom-allowing lawyers
to take a case without pay up front where a meritorious client has
been harmed. For many whistleblowers, this is the only way to
ever bring an action against a powerful employer who sought to
silence them.
Still, a growing patchwork of state and federal laws is
beginning to offer whistleblowers a way to fight back.
Pennsylvania has a "blanket" protection under 43 Pa.C.S. §
6 | Berks Barrister

1424 for state employees reporting misconduct. Under the 2018
case Bailets v. Pa. Turnpike Commission, the Supreme Court
of Pennsylvania held that state whistleblowers are entitled to
damages for pain and suffering and or the psychological damage
of the adverse action, including even the pain that the termination
causes one's family.
The federal statutes are better known. Where the
whistleblowing involved safety standards covered under the
Occupational Safety and Health Administration (OSHA), the
whistleblower typically has a cause of action. The Food Safety
Modernization Act (FSMA) is just one example of this: where
a whistleblower points out violations of proper procedure in
handling food served to the public, the report is protected.
Attorneys' fees are provided under the FSMA.
Whistleblowers in certain professions have stronger
protections than others. SEC violations are protected under the
Dodd-Frank Act, and abuses of classified material can be reported
with protection as well. Returning to our impeachment informer,
the federal Whistleblower Protection Act at 5 U.S.C. § 2302,
et seq. protects any federal government employee who reports
"any violation of any law . . . gross mismanagement" or "abuse
of authority," or actions which create "a substantial and specific
danger to public health or safety." But this Act requires claims to
be brought before the Merit Systems Protection Board, which has
historically sided, with shocking consistency, with the government
against its whistleblowers.
Whatever statute the claim is brought under, the whistleblower
will need to show a causal connection between the protected
report and the adverse employment action. Time between the
report and adverse action, statements made by other employees
or managers ("I'll get you back!"), and the pretextual nature of the


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Berks County Bar Association The Berks Barrister Fall/Winter 2019

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