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WHISTLING IN THE WIND DOES NOT A WHISTLEBLOWER MAKE – TENNESSEE WHISTLEBLOWER LAW

WHISTLING IN THE WIND DOES NOT A WHISTLEBLOWER MAKE – TENNESSEE WHISTLEBLOWER LAW

May 24, 2018

By: Steve Collins

If you want to be heard, don’t whistle into the wind.  From this common-sense observation comes the idiom “whistling in the wind.”  The meaning of that idiomatic phrase is that such an effort is all for not and is not calculated to effect any change.

The exclusive way for a whistleblower lawsuit to be brought in Tennessee is under the Tennessee Public Protection Act, Tennessee Code Annotated 50-1-304.  The Act places formidable barriers for a plaintiff to receive a money judgment against an employer.  To prevail the employee must prove actual termination, refusal to participate in an illegal activity or protesting against the employer engaging in illegal activity and that the firing was “solely” because of the refusal or protestation.

Major categories of damages are limited by the size of the employer ranging from a limit of $25,000.00 for compensatory damages for employers having 8 to 15 employees to a high of $300,000.00 for employers having 600 or more employees.  There is no right in a whistleblower lawsuit to have a jury decide the case.  All such cases are tried to and decided by a judge. See, Young v. City of Lafollette, (Tennessee Supreme Court 2015).

The key aspect of the Act is contained in the phrase, “Public Protection.”  To win a lawsuit the employee must prove a violation of a law that clearly was enacted to protect the public, prove they refused to participate in the illegal activity or prove they complained about the activity in a meaningful way calculated to further public protection and prove that their effort to oppose the illegal activity was the only reason they were fired..  If the employee is pursuing purely private motivations such as gripping about compensation, benefits or management style, or if the employee complains to only to the person alleged to have committed the illegal act, then the employee loses the lawsuit.

The Tennessee Supreme Court in the case of Haynes v. Formac Stables, Inc., (2015) held the Act precludes a money award for an employee who only complains of the alleged unlawful activity to the very person alleged to have been responsible for that activity.   This is true even when “that person is the manager, owner or highest authority within the company.”  Such reporting of an alleged illegal activity is “merely private or proprietary” and is not calculated “to further the public good.”  An employee that only complains of the alleged illegal conduct to the very person he or she claims committed the conduct “fails to blow the whistle in a meaningful fashion because the employee has made no effort to bring to light an illegal or unsafe practice.” The Supreme Court’s opinion recognizes the central purpose of the Tennessee Public Protection Act is to do just what it says, protect the public. The court said that it reached this result because “the discharge of a whistleblower is a narrow exception to the employment-at-will doctrine and must be limited to situations in which an employee has exposed the wrongful conduct of the employer in furtherance of the public interest.”

The public is not protected by conclusionary unsubstantiated claims that an employer violated a law.  The employee must specifically present proof of what activities were illegal and must point to a “clear mandate of public policy, evidenced by an unambiguous constitutional, statutory or regulatory provision.”  Stein v. Davidson Hotel Co., (Tennessee Supreme Court 1999).  The bald assertions of the employee are insufficient.  A plaintiff’s subjective “belief” or “feeling” the employer violated the law is insufficient.  The allegation must be substantiated by a reasonable good faith basis supported with specific facts proving the commission of an illegal act in violation of a specific law which was enacted to protect the general public.

In the film adaptation of To Have and To Have Not, Marie “Slim” Browning (Lauren Bacall) famously said to Harry “Steve” Morgan (Humphrey Bogart): “If you want me, just whistle.  You know how to whistle, don’t you Steve?  You just put your lips together and blow.”  While sufficient to bring Bogie and Bacall together, it is insufficient for an employee to win a whistleblower lawsuit in Tennessee.  To win the employee must prove they were fired (nothing less will suffice), that there is a reasonable good faith basis substantiated by specific facts to demonstrate the violation of a clear mandate of an unambiguous law designed to protect the public, that the employee refused to participate in that activity or complained of that activity to an outside enforcement source or complained internally to someone other than the alleged wrongdoer and prove the sole reason for termination was refusing to participate in or meaningfully complaining of the employer’s illegal conduct.  Unless each element is proved, the lawsuit fails.  Further, whatever dollars could be recovered in the event that this heavy burden of proof is met are limited by law.  Finally, these cases are not tried to a jury but instead are heard by and decided by a judge.

Steve Collins focuses on employment law, domestic relations and premises liability in the Knoxville office.

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