October 6, 2009
By: Sandra Norman-Eady, Chief Attorney
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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).
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.
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.
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).