Employees in Arizona are protected in some circumstances against retaliation for “whistleblowing,” which is the reporting of what the employee believes is illegal conduct engaged in by the employer. Arizona has one “whistleblowing” law that applies to individuals who work for the State of Arizona and another one for those who work for a private (non-government) company.
If you work for a private company (not the State of Arizona):
The Arizona Employment Protection Act, A.R.S. § 23-1501 (“EPA”), makes it illegal for a private company to terminate the employment of a worker for reporting to management, a State agency or a political subdivision of the State his/her reasonable belief that the employer has violated, is violating or will violate a State law or the Arizona Constitution. The EPA also prohibits terminating an employee for refusing to engage in conduct the employee reasonably believes will violate a State law or the Arizona Constitution.
The EPA does not protect Independent Contractors. Nor does it protect employees who are terminated for “whistleblowing” about a violation of a U.S. law or regulation, municipal laws or other state’s laws. Also, if the employee informed the company rather than a State agency or political subdivision of the State, the employee must have believed he/she was reporting to a member of management or a company representative who had the authority to investigate and take action. In other words, complaining to a coworker usually is not enough to trigger the EPA’s protections.
The employee has the burden to show he/she made the complaint in good faith, sometimes stated as the complaint was “objectively reasonable.” This means that a whistleblower’s wrongful termination complaint is subject to dismissal if no reasonable person could conclude that the company engaged in the unlawful conduct the employee reported.
Another critical factor is that the employee must actually have been terminated; other forms of retaliation (e.g., loss of duties, ostracism in the workplace) are not covered by the EPA. If a whistleblower is not terminated but the conditions at work become so intolerable that no reasonable person would remain employed, the employee’s quitting might be construed as a “constructive discharge” allowing a whistleblower EPA claim to survive. In either a termination or a constructive discharge, blowing the whistle must have been the “substantial motivating factor” in the termination. If the employer can show there were other legitimate reasons for the termination and that the whistleblowing was a minor factor or not a factor at all in the decision to terminate, the wrongful discharge/whistleblower retaliation claim would fail.
If you work for the State of Arizona or one of its political subdivisions:
The whistleblower law that applies to State workers, A.R.S. § 38-532, provides that the State employer may not take any adverse employment action against a State employee for reporting a violation of any law, or the mismanagement, gross waste of monies or an abuse of authority.
Under this whistleblower statute, any adverse employment action is prohibited. Hence, unlike the EPA, a whistleblower under the State-employee statute need not be terminated to have a claim; a demotion, a reduction in pay, a written warning, or even a transfer to an arguably lesser position including a reduction in job responsibilities is a sufficient adverse action so long as it resulted from the employee blowing the whistle.
This State-employer law has a much more stringent requirement for what needs to be done to report an illegal act. An employee must disclose the information of a public concern in writing to a public body (not someone within the company). The writing must contain the employee’s name, a summary of the alleged violation and the date range in which the violations occurred. The employee may not disclose confidential information or materials to unauthorized individuals when submitting the report.
Be aware that there also are a number of U.S. (federal) laws protecting “whistleblowers” against retaliation.
If you believe you have been subjected to retaliation for reporting what you believe is conduct that violates a law, don’t delay. Contact Faulkner Law Offices, PLLC to help you protect your rights today.