Whistleblowers Are Not Protected from the Consequences of Their Own Misconduct

Although employers may not take adverse action against an employee for whistleblowing activity, those employees are not protected from any and all adverse actions, as the U.S. Court of Appeals for the D.C. Circuit recently noted.

There are many laws at the federal and state level that provide protection to whistleblowers (i.e. employees who report illegal activity by the employer). In Marcato v. U.S. Agency for Int’l Devt., the employee frequently alleged misconduct by high-ranking agency officials. However, the employee had also engaged in misconduct herself, as confirmed by an extensive investigation, which resulted in her termination. She appealed her termination, invoking the federal Whistleblower Protection Act, which protects federal employees from retaliation for reporting legal violations.

The WPA specifically provides that employers taking adverse actions against a whistleblower do not violate the law if they can show “by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.” Although not all statutes have the exact same language, the general principle applies – an employer may terminate an employee who engaged in whistleblowing activity, as long as the termination is justifiable and wholly unconnected to the activity (although the standard for making this showing may differ under the applicable law). Factors that are relevant under the WPA (and are likely relevant under other laws) include: the strength of the employer’s evidence in support of its personnel action; the existence and strength of any motive to retaliate on the part of the company officials who were involved in the decision; and any evidence that the employer takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.

In the present case, the D.C. found that the employer would have terminated the employee for her misconduct regardless of her protected disclosures. It also rejected her contention that the employer commenced the investigation against her because of her whistleblowing activity, noting that her misconduct itself justified the investigation and the individual making the decision to commence the investigation had no reason to engage in retaliation.

The lesson here for employers is that, while they need to proceed carefully when dealing with a whistleblower, they can still proceed with adverse employment actions as long as they can demonstrate that the actions are legitimate, that they would have been taken regardless of the protected activity, and that the employee is being treated consistently with how others engaging in the same type of misconduct have been treated.