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October
6, 2009 |
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2009-R-0366 |
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Whistleblower Laws |
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By: Sandra Norman-Eady, Chief
Attorney |
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You asked for a summary of
SUMMARY
Three laws
protect
Another law prohibits
retaliation against a private or public sector employee who reports illegal
conduct to the proper authorities or who participates in an investigation of
illegal conduct (§ 31-51m). The third law bars employer retaliation
against employees for exercising their constitutional rights (§ 31-51q).
Whistleblower
Complaints
Under Connecticut’s
whistleblower law (CGS § 4-61dd, as amended by PA 09-185)
anyone who knows of corruption, state law or regulation violations, gross waste
of funds, abuse of authority, or danger to public safety occurring in any state
department or agency, quasi-public agency, or large state contract may send
information regarding it to the state auditors. He or she may also report
to the auditors evidence of unethical practices and mismanagement by a state or
quasi-public agency. A large state contract is one between a private entity and
a state or quasi-public agency and with a value of at least $5 million.
The auditors must
review the matter and report their findings and recommendations to the attorney
general, who must conduct any investigation he deems proper. If the
investigation is based on information received from the auditors, the auditors
must assist with the investigation. After the investigation, the attorney
general must, when appropriate, report his findings to the governor. If
the matter involves a crime, he must report it to the chief state’s attorney. Neither
the auditors nor the attorney general may reveal the informant’s name without
consent, except when disclosure is unavoidable during the course of the
investigation.
Although the
auditors and attorney general are responsible for investigating and reporting
whistleblower matters, neither is authorized to issue orders binding on agencies,
quasi-public agencies, or state contractors, or their officials or employees to
stop action charged in the whistleblower complaint. The state auditors and the attorney general
also lack the authority to provide relief to individual whistleblowers. Whistleblowers who believe they are the
victims of retaliation may file a complaint with the chief human rights
referee.
Retaliation
Officers,
employees, and appointing authorities are prohibited from taking or threatening
to take any adverse personnel action against an employee in their agencies or
employment in retaliation for the employee’s disclosure of information
to the auditors or attorney general, a coworker, a mandated reporter. The
prohibition also applies to officers, employees, and appointing authorities in
the Department of Children and Families (DCF) when someone reports the unlawful
disclosure of a DCF record.
The law creates a
rebuttable presumption that an adverse action is retaliatory if it is taken or
threatened within a year of the whistleblower’s report. An employee who believes he or she has been
retaliated against may notify the attorney general, who must investigate the
matter. Within 30 days after the actual or threatened retaliatory action,
the affected employee or his or her attorney may also file a complaint with the
chief human rights referee. The chief referee must assign the complaint
to a human rights referee who must conduct a hearing and determine whether the
personnel action or threatened action was in retaliation for whistleblowing.
The attorney general represents the state agency in these retaliatory proceedings
even though he previously investigated the whistleblower’s complaint.
If the referee
finds that the action or threatened action was retaliatory, he or she may order
that the aggrieved employee (1) be reinstated to the former position, (2)
receive back pay, (3) have his or her benefits reestablished at the level to
which he or she would have been eligible but for the violation, and (4) receive
reasonable attorney fees and any other damages. Any party may appeal the
referee’s decision to Superior Court.
Alternative
Procedure for Reporting Retaliation
As an alternative
to notifying the attorney general and filing a complaint with the chief human
rights referee, a state or quasi-public agency employee may file an appeal to
the Employees’ Review Board within 30 days or, if he or she is covered by a
collective bargaining agreement, may appeal in accordance with that agreement.
An employee of a large state contractor may, after exhausting all
available administrative remedies, file a civil cause of action in Superior
Court. If an appointing authority or an officer or
employee of a state agency, quasi-public agency, or large state contractor
takes or threatens to take action impeding, canceling, or failing to renew a
contract between a state agency and a large state contractor, or a large state
contractor and its subcontractor, in violation of the whistleblower statutes, the affected agency, contractor, or
subcontractor may bring a civil action to recover damages, attorney’s fees, and
costs. The agency, contractor, or subcontractor must bring the action in
Hartford Superior Court within 90 days of learning of the action, threat, or
failure to renew.
False
Complaints
Any employee who
knowingly or maliciously makes false charges can be disciplined or discharged;
however, no one is liable for civil damages as a result of his or her good
faith disclosure of information to the auditors or the attorney general.
WHISTLEBLOWER PROTECTION FOR PRIVATE AND
PUBLIC SECTOR EMPLOYEES
Employers cannot
discharge, discipline, or otherwise penalize an employee because the employee
or someone acting on his or her behalf reports a violation or suspected
violation of federal or state law or regulation, or municipal ordinance or regulation
to a public body. These employers are also prohibited from penalizing the
employee because the public body requests him or her to participate in one of
its investigations, hearings, or inquiries, or a court action. No
municipal employer can subject an employee to any such action because he or she
reported the employer’s unethical practices, mismanagement, or abuse of
authority.
Any employee who
is so discharged, disciplined, or penalized in violation of the law may, after
exhausting all administrative remedies, bring a civil action within 90 days of
the violation or final administrative decision in the Superior Court for the
judicial district where the violation occurred or the employer has its
principal office. The court may (1) order the employer to reinstate the
employee, pay back wages, or reestablish benefits, as the case may be, and (2)
award the prevailing party costs and reasonable attorney’s fees.
Employers may discipline employees who knowingly make a false report (CGS
§ 31-51m).
PROTECTING EMPLOYEES’ FIRST AMENDMENT RIGHTS
Employers, including
the state and its political subdivisions, are liable to any employee who is
disciplined or discharged because he or she exercised any right guaranteed by
the First Amendment to the federal constitution (i.e., freedom of speech,
press, religion, and assembly) or Sections 3, 4, or 14 (i.e., religion, speech
and press, and assembly, respectively) of Article First of the state constitution.
The employers are liable for damages, including punitive damages, and
reasonable attorneys’ fees. A court may also order an employee to pay the
employer’s costs and reasonable attorneys’ fees if it determines that the
lawsuit was filed without substantial justification.
The law does not
prohibit employers from disciplining or discharging employees whose involvement
in these activities interferes with their job performance or the working
relationship between employer and employee (CGS § 31-51q).
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