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Your Rights Filing a Whistleblower or Retaliation Claim - Pennsylvania

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1. What legal protection does Pennsylvania provide private sector employees in regard to whistleblowing and retaliation?

The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.

Common Law Protections
Pennsylvania recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee in a manner that violates a clear mandate of public policy. An employee has a cause of action-in other words, the employee may sue-for wrongful discharge when the motivation for the discharge violates public policy.

To determine what constitutes public policy, Pennsylvania courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Pennsylvania statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Pennsylvania's public policy. In both situations, employees are protected from retaliatory discharge.

Statutory Protections
In addition, the Pennsylvania General Assembly has adopted narrow statutory protections for certain activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: commercial motor vehicle operators, discrimination, hazardous substances, minimum wage, state of emergency (road closings), and wage discrimination (equal pay).

Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

2. What activities does state law protect, and to whom does this protection apply?

Common Law Protections
An employee may not be discharged in a manner that violates a clear mandate of public policy. Specifically, Pennsylvania courts have protected the following activities:

  • Refusing to violate the law
  • Filing a workers' compensation claim
  • Filing for unemployment benefits
  • Performing statutorily imposed duties
  • Testifying truthfully
  • Serving on a jury
  • Refusing to take a lie detector or drug test (unless the employer has good reason)

However, Pennsylvania courts have yet to protect whistleblowing activities under the public policy exception.

Statutory Protections
General Whistleblower Protection:

Abuse- Older Adults: An employee may not be retaliated against for reporting an older adults need for protection from abuse or neglect. 35 Pa. Stat. Ann. § 10225.302.

Commercial Motor Vehicle Operators: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, or testifying in a proceeding relating to a violation of a commercial motor vehicle safety rule. Nor may an employee be discharged (or discriminated against) in retaliation for refusing to operate a commercial motor vehicle that fails to comply with safety laws (state or federal laws) or because the employee reasonably fears serious injury to himself or to the public. In situations where the employee fears serious injury or where the vehicle fails to comply with federal laws, the employee must first notify the employer of the safety problem; only after the employee fails to obtain a correction of the unsafe condition is an employee protected from retaliation. 43 Pa. Stat. Ann. § 1431.

Construction Workers: An employee may not be retaliated against for reporting a violation of the Construction Workplace Misclassification Act or for invoking any of the rights contained in the act. This act was intended to stop the misclassification of employees as independent contractors. 43 Pa. Stat. Ann. § 933.10.

Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory practice. Nor may an employee be discharged (or discriminated against) in retaliation for making a charge, testifying, or assisting in an investigation or proceeding under the Pennsylvania Human Relations Act (PHRA). The PHRA prohibits discrimination on the basis of race, color, religious creed, ancestry, age, sex, national origin, or disability. 43 Pa. Stat. Ann. § 955(d).

Hazardous Substances: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, assisting the Department of Labor and Industry with an inspection, instituting a proceeding, testifying in a proceeding, requesting information, or exercising a right under Pennsylvania's Worker and Community Right-to-Know Act, which relates to hazardous substances in the workplace. That Act requires employers to provide information on hazardous substances to employees. 35 Pa. Stat. Ann. § 7313.

Healthcare: An employee may not be retaliated against for refusing to work overtime in the healthcare industry. 43 Pa. Stat. Ann. § 932.3.

Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for testifying in a proceeding under Pennsylvania's Minimum Wage Act. An employer may be fined between $500 and $1,000 (and potentially imprisoned 10 to 90 days). 43 Pa. Stat. Ann. § 333.112(a).

Minors: During school vacations, a minor employee may not be retaliated against for refusing to work more than 44 hours in a week. 43 Pa. Stat. Ann. § 40.3.

Public Employees: A public employee may not be retaliated against for reporting a violation of the Code of Ethics to the State Ethics Commission. 65 Pa. Con. Stat. § 1102.

Public Works Contractor: An employee of a public works contractor or subcontractor may not be retaliated against for reporting a violation of the Employment Verification Act. 43 Pa. Stat. Ann. § 167.3.

Smoke-Free Workplace: An employee may not be retaliated against for invoking any rights granted under the Clean Indoor Air Act such as the right to a smoke-free workplace. 35 Pa. Stat. Ann. § 637.7.

State of Emergency / Road Closings: An employee may not be discharged (or disciplined) in retaliation for missing work because a state of emergency has been declared that closes roads in the county where the employee lives or where the employee works. 43 Pa. Stat. Ann. § 1482.

Wage Discrimination (Equal Pay): An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding under Pennsylvania's Equal Pay Law, which prohibits wage discrimination on the basis of sex. An employer may be fined between $50 and $200 (and potentially imprisoned 30 to 60 days). 43 Pa. Stat. Ann. § 336.8(a).

3. How do I file a whistleblower or retaliation claim in Pennsylvania?

Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 2 years 42 Pa. Cons. Stat. Ann. %26sect; 5524. of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer. A person who makes a report under Pennsylvania's Whistleblower Law should file a complaint within 180 days of adverse action.

Commercial Motor Vehicle Operators: An employee may file a complaint with the Pennsylvania Department of Labor and Industry. The complaint must be filed within 180 days 43 Pa. Stat. Ann. %26sect; 1431(c)(1). of the retaliatory action. If you believe you have a claim, you should contact the Department immediately.

Discrimination: An employee may file a complaint with the Pennsylvania Human Relations Commission (PHRC). The complaint must be filed within 180 days 43 Pa. Stat. Ann. %26sect; 959(h). of the retaliatory action. If you believe you have a claim, you should contact the PHRC immediately.

The PHRC maintains a central office in Harrisburg, with regional offices in Pittsburgh, Harrisburg, and Philadelphia. Complaints must be made to the appropriate regional office (the office that has jurisdiction over the county where the retaliation occurred). The PHRC web site provides the appropriate forms. Form IN14 is the appropriate form to file a retaliation complaint.

The PHRC central office can be reached at:
Pennsylvania Human Relations Commission
301 Chestnut Street, Suite 300
Harrisburg, PA 17101
Phone: (717) 787-4410
TTY: (717) 787-4087

Hazardous Substances: An employee may file a written complaint with the Pennsylvania Department of Labor and Industry. The complaint must be filed within 180 days 35 Pa. Stat. Ann. %26sect; 7314(a). of the retaliatory action. If you believe you have a claim, you should contact the Department immediately.

State of Emergency / Road Closings: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 90 days 43 Pa. Stat. Ann. %26sect; 1484(b). of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately.