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Your Rights Filing a Whistleblower or Retaliation Claim - Washington

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1. What legal protection does Washington 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
Washington recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates a clearly articulated 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, Washington courts will look to statutes and judicial decisions 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 Washington 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 Washington's public policy. In both situations, employees are protected from retaliatory discharge. The Supreme Court of Washington has recognized that whistleblowers who report employer misconduct are protected under the public policy exception.

An employee must demonstrate three elements in a wrongful discharge lawsuit: (1) the existence of a clear public policy; (2) that discouraging the conduct in which the employee engaged would jeopardize the public policy; and (3) that the public-policy-linked conduct caused the dismissal. In addition, the employer must be unable to demonstrate an overriding justification for the dismissal.

Statutory Protections
In addition, the Washington State Legislature 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: discrimination, farm labor contractors, hazardous substances, minimum wage, occupational safety and health, and workers' compensation.

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 for a reason that violates a clearly articulated public policy. Washington courts have recognized four categories of activities where the public policy exception protects employees:

  • Refusing to commit an illegal act
  • Performing a public duty or obligation (such as jury duty)
  • Exercising a legal right or privilege
  • Reporting employer misconduct

Whistleblowers are protected under the fourth category, but only if the employee intended to further the public good. An employee is not protected if the employee seeks to further his own private interests.

Statutory Protections
Abuse- Mentally Ill Patients: An employee may not be discharged (or discriminated against) in retaliation for reporting the abuse, neglect, financial exploitation, or abandonment of a patient in a state hospital for the mentally ill to the state department of social and health services or to a law enforcement agency. Wash. Rev. Code § 70.125.100.

Abuse- Vulnerable Adults: An employee (or contractor) may not be discharged (or discriminated against) in retaliation for reporting the abuse, neglect, financial exploitation, or abandonment of a vulnerable adult regardless of whether care takes place in nursing care facility or in a home care environment. Wash. Rev. Code § 70.34.180.

Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing discrimination made unlawful by Washington's Law Against Discrimination (WLAD). Nor may an employee be discharged (or discriminated against) in retaliation for filing a charge, testifying, or assisting in a proceeding under WLAD. WLAD prohibits, among other things, discrimination in employment on the basis of age, sex, marital status, sexual orientation, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person. Wash. Rev. Code § 49.60.210(1).

Domestic Violence Leave: An employee may not be discharged (or discriminated against) for filing a complaint against their employer for denying the employee their rights under the Domestic Violence Leave Act. Some of the rights included are time off for consultation with attorneys, seeking medical attention, aiding a family member in finding a domestic violence shelter, and participation in relocation or other temporary safety measures. Wash. Rev. Code § 49.76.030.

Farm Labor Contractors: An employee of a farm labor contractor or agricultural employer may not be discharged (or discriminated against) in retaliation for performing the following protected activities under Washington's laws regulating farm labor contractors:

  • Making a claim against the employer for compensation
  • Instituting a proceeding
  • Testifying in a proceeding
  • Consulting with any person about the employee's rights Wash. Rev. Code %26sect; 19.30.190.

Hazardous Substances: An employee may not be discharged (or discriminated against) in retaliation for exercising any right established under the Worker and Community Right to Know Act. Among its provision, that Act provides employees with the right to request a copy of workplace survey or material safety data sheet from the employer. Wash. Rev. Code § 49.70.110.

Medicaid Fraud False Claims: An employee may not be discharged (or discriminated against) in retaliation for reporting a violation of the Washington Medicaid False Claims Act. Wash. Rev. Code § 74.66.090.

Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding under the Washington Minimum Wage Act. The complaint may be made to either the employer or the Washington State Department of Labor and Industries. An employer who retaliates in this manner is guilty of a gross misdemeanor. Wash. Rev. Code § 49.46.100(2).

Nursing Homes: An employee may not be discharged (or discriminated against) in retaliation for participating in a proceeding with the state department of social and health services. Wash. Rev. Code § 18.51.220.

Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right under the Washington Industrial Safety and Health Act (WISHA). Wash. Rev. Code § 49.17.160(1).

Public Employees: An employee may not be discharged (or discriminated against) in retaliation for filing a report with the ethics board.

Workers' Compensation (Industrial Insurance): An employee may not be discharged (or discriminated against) in retaliation for filing (or communicating an intent to file) a workers' compensation claim. Wash. Rev. Code § 51.48.025(1).

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

Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 3 years Wash. Rev. Code %26sect; 4.16.080(2). of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer.

Discrimination: An employee may file a complaint with the Washington Human Rights Commission (HRC). The complaint must be filed within 6 months Wash. Rev. Code %26sect; 49.60.230(2). of the retaliatory action. If you believe you have a claim, you should contact the HRC immediately.

The HRC web site provides additional information on how to file a discrimination/retaliation complaint, along with an on-line complaint questionnaire. Contact information for the 5 HRC offices in Washington is also provided on the web site.

Alternatively, an employee may file a lawsuit in an appropriate court. If you wish to pursue this route, you should contact a lawyer.

Hazardous Substances / Occupational Safety and Health: An employee may file a complaint with the Washington State Department of Labor and Industries (L&I). The complaint must be filed within 30 days of the retaliatory action. If you believe you have a claim, you should contact L&I immediately. L&I has made a retaliation/discrimination complaint form available on their web site in PDF format. L&I can also be reached by phone at 1-800-547-8367 or (360) 902-6568.

Workers' Compensation (Industrial Insurance): An employee may file a complaint with the Washington State Department of Labor and Industries (L&I). The complaint must be filed within 90 days of the retaliatory action. If you believe you have a claim you should contact L&I immediately. L&I can be reached at 1-800-547-8367 or (360) 902-6568.