Berks County Bar Association The Berks Barrister Fall/Winter 2019 - 7

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reason given for adverse action can all be relevant to proving the
case. As with all civil actions, gathering evidence while the act is
fresh in the mind is crucial. In today's world, video evidence can
often be gathered if the litigant is quick to send a spoliation or
litigation hold letter, and text messages and emails often tell more
of the story than an employer would like.
Some employers will defend these actions by painting the
whistleblower as a general pain to management, as someone who
was minding others' business, didn't get along with co-workers,
or otherwise created problems in the workplace. Obviously, this
is a fact-based inquiry, but all too often, this is an employer's way
of re-casting their adverse action in a more favorable light. If the
whistleblower was "annoying" to co-workers because he was a
stickler for safety, that won't prove to be an effective defense for
the employer.
Other common defenses can prove to be more effective. In
the 2018 case Digital Realty Trust v. Summers, the Supreme
Court of the United States ruled that "external" reports are
protected under Dodd-Frank, but internal reports were not. In
other words, reporting to one's own supervisor did not create a
protected report-the whistleblower had to take it to the SEC.
Although this ruling applies only to that statute, the precise
nature of the report and whether the report was made to the
proper authority is an important factor in analyzing these claims.
In representing employers, it's important to recommend
whistleblower policies. Employers should be encouraged to create
clear paths of communication as to whom a report must be made.
This eliminates the problem of an employee gossiping far and
wide and then attempting to claim protection when confronted.
Policies should be written to allow various ways of reporting the
alleged misconduct so that it can be reported to supervisors or
leaders who are not believed to be "friendly" to the individual
accused of misconduct. A policy that is unworkable offers no
protection to the employer.
Our society benefits from whistleblowers-and companies
and governments do, too. It's important to incentivize appropriate
reporting through proper channels, and to make sure employees
know what these channels are. Too often, whistleblower policies
are clumped in with a number of other "onboarding documents"
when someone is hired. Employers benefit when employees
know who to go to and are protected when they bring concerns
to employers' attention. But when employees face adverse action
for speaking up, civil litigators can help by placing a megaphone
in front of the whistle.
Joel Ready is a partner at Cornerstone Law Firm where he
handles civil litigation.

ATTORNEY DISCIPLINARY
AND ETHICS MATTERS
STATEWIDE PENNSYLVANIA MATTERS
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Representation,	consultation	and	expert	testimony	in
disciplinary	matters	and	matters	involving	ethical	issues,
bar	admissions	and	the	Rules	of	Professional	Conduct

James C. Schwartzman, Esq.

*	 Judge,	Court	of	Judicial	Discipline
*	 Former	Chairman,	Judicial	Conduct	Board	of	Pennsylvania
*	 Former	Chairman,	Disciplinary	Board	of	the	Supreme	Court	
of	Pennsylvania
*	 Former	Chairman,	Continuing	Legal	Education	Board	of	the	
Supreme	Court	of	Pennsylvania
*	 Former	Chairman,	Supreme	Court	of	Pennsylvania	Interest	on	
Lawyers	Trust	Account	Board
*	 Former	Federal	Prosecutor
*	 Selected	by	his	peers	as	one	of	the	top	100	Super	Lawyers	in	
PA	and	the	top	100	Super	Lawyers	in	Philadelphia
*	 Named	by	his	peers	as	Best Lawyers in America	2015	
Philadelphia	Ethics	and	Professional	Responsibility	Law	
"Lawyer	of	the	Year,"	and	in	Plaintiffs	and	Defendants	Legal	
Malpractice	Law

111 North Sixth Street * Reading, PA 19601
(215) 751-2863

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Berks County Bar Association The Berks Barrister Fall/Winter 2019

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