A decision released on 10/1/2015 from the Department of Labor’s administrative review board (the “Board”) highlighted employment law issues arising at the intersection of whistleblowing, retaliation, and reasonable accommodation involving telecommunication. (Stewart v. Lockheed Martin Aeronautics Co., released 10/1/15). In the decision, the Board affirmed an administrative law judge’s ruling against Lockheed’s former employee.
The ruling held the former employee failed to establish claims that the company violated the Sarbanes-Oxley Act’s (SOX) whistle-blower protections by rescinding her approval to telecommute, harassing her, and constructively discharging her after she raised concerns about workplace audit.
As to the facts leading up to the claim, Stewart worked for Lockheed for 20 years, serving as a certified public accountant and then lead of its subcontracts audits group. In 2009, Lockheed began offering telecommuting for employees. Stewart had a neurological disorder and she began teleworking several days a week.
In late 2011, Stewart was assigned to audit a joint venture between Lockheed and Tata Advanced Systems. She raised a number of concerns during the audit, including the management team’s purported lack of subcontract audit experience, a lack of data to conduct the audit and potential conflict of interest issues.
Thereafter, Stewart claimed that Lockheed management rescinded her ability to telecommute and harassed her. She took medical leave in April 2012 and didn’t return to work, eventually resigning in December. Stewart brought a SOX Act whistle-blower claim against Lockheed, but a Labor Department ALJ ruled in the company’s favor in January 2014.
No Causation Between Adverse Employment Decisions and Whistleblowing
The Board found substantial evidence that Stewart failed to show that her protected activity contributed to any of the adverse employment actions she alleged. Specifically, it found that Lockheed had:
- Suspended telecommuting before Stewart submitted her audit complaints;
- Any purported harassment resulted from the telecommuting denial; and
- Stewart had voluntarily decided to retire at the end of a medical leave of absence.
For these reasons, the Board agreed that there was no causation with respect to the claimed protected activity and the adverse employment decision.
Would-be whistleblowers need to evaluate numerous factors before blowing the whistle. In sum, the complex legal and ethical landscape will determine whether to blow the whistle and under what circumstances.
For companies, it is important to realize that employees may be less likely to publicly blow the whistle if they believe that their companies have effective internal mechanisms for raising concerns about perceived misconduct. For this reason, an important objective of companies in handling internal whistleblower complaints should be to do so in a manner that convinces employees that the companies fairly and effectively address employees’ concerns.
This also has the added risk-management benefit to the extent a court or jury believes the employee did not exhaust existing internal channels for complaints.
For more information about whistleblowing laws and complying with employment legal requirements prohibiting the retaliation against whistleblowers, contact employment attorney Jason Shinn. Mr. Shinn has assisted employers and employees since 2001 in the area of federal and Michigan employment law issues.