For Whom does the Whistle Blow? Common Law versus Statutory Law

This week, the United States District Court for the Middle District of Tennessee dismissed a case against Wal-Mart that involved several calls to Wal-Mart Global Ethics. See Hall v. Wal-Mart Stores, 2017 U.S. Dist. Lexis 75208. The only cause of action that the ex-Wal-Mart employee brought against Wal-Mart, however, was a statutory claim under the Tennessee Public Protection Act (“TPPA”).

The TPPA gives a party a cause of action under its anti-retaliation provisions if the party engages in whistleblowing activities meant to protect the public good.

Wal-Mart alleged that the ex-employee failed to state a claim under the TPPA because her whistleblowing activities were merely private and proprietary and did not advance the public good. In what is an interesting opinion for ethics junkies, the court agreed with Wal-Mart and dismissed the ex-employee’s complaint.

While still employed by Wal-Mart, the ex-employee reported to Wal-Mart Global Ethics what she perceived to be her supervisor’s unethical conduct. It is unclear whether the supervisor’s conduct was actually unethical. After the ex-employee made the report, she received her first poor evaluation, which she claimed was in retaliation for her report to Wal-Mart Global Ethics.

There appears to have been some tension between the ex-employee and the supervisor. Whether the supervisor was unfairly targeting the ex-employee or simply frustrated with her performance is unknown. However, on one occasion, the supervisor got so frustrated with the ex-employee that he punched a box. Other employees saw this and reported it to Wal-Mart Global Ethics. The Hall v. Wal-Mart opinion certainly indicates that Wal-Mart employees at this particular store knew how to contact the ethics department—a sign of a good ethics and compliance program.

In reaching its conclusion, the Hall v. Wal-Mart court stated that the TPPA will protect a whistleblower from retaliation if it can be shown that the whistleblowing activity was to further protect the public good. Other courts have found that, under the TPPA, whistleblowing activity may serve a public purpose where, for example, the whistleblowing relates to unsafe working conditions, but not where it relates to racial discrimination in a single person’s pay. The Hall v. Wal-Mart court concluded that under the TPPA, blowing the whistle on discrimination against oneself is a private and proprietary interest that must be vindicated through means other than the TPPA.

While the TPPA is a statutory law that protects whistleblowers from retaliation in situations where the whistleblowing was meant to protect the public good, there are common-law retaliatory-discharge claims that do not require showing that the whistleblowing activity protected the public good at-large, however, the ex-employee did not assert a common law claim for retaliatory discharge.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s