1. What legal protection does Alaska 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
Alaska recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee in a manner that is contrary to the public policy of Alaska. 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, Alaska 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 an Alaska 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 Alaska's public policy. In both situations, employees are protected from retaliatory discharge.
In addition, the Alaska Legislature has adopted narrow statutory protection for certain activities. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination, occupational safety and health, wage and hour, and workers' compensation.
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 reasons that are contrary to public policy. Specifically, Alaska courts have protected the following activities:
- Filing workers' compensation claims
- Filing safety complaints
- Testifying as a witness in a legal proceeding
Public Employees: Public employers may not discriminate against public employees (or their representatives) for reporting to a public body and matter of public concern. Alaska Stat. § 39.90.100.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing unlawful discrimination. Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying, or assisting in a proceeding under Alaska's law concerning discrimination. Alaska prohibits discrimination in employment on the basis of race, religion, color, national origin, age, physical or mental disability, sex, marital status, changes in marital status, pregnancy, and parenthood. Alaska Stat. § 18.80.220(a)(4).
Occupational Safety and Health: An employee may not be discharged (or discriminated against) for performing the following acts:
- Filing a complaint or instituting a proceeding to enforce occupational safety and health standards
- Testifying in a proceeding relating to occupational safety and health
- Exercising a personal right (either for the worker himself or on behalf of another worker) under the Occupational Safety and Health Act
Alaska Stat. § 18.60.089.
Wage and Hour: An employee may not be discharged (or discriminated against) for the following acts:
- Filing a complaint or instituting a proceeding related to wage and hour laws (for example, filing a complaint about minimum wage or overtime violations)
- Testifying (or is about to testify) in a proceeding related to wage and hour laws
Alaska Stat. § 23.10.135(6).
Workers' Compensation: An employee may not be discharged in retaliation for filing a workers' compensation claim. Alaska Stat. §§ 23.30.020, 23.30.247.
3. How do I file a whistleblower or retaliation claim in Alaska?
Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 3 years 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 Alaska State Commission for Human Rights (ASCHR). The complaint must be filed within 180 days of the retaliatory action. If you believe you have a claim, you should contact ASCHR immediately at:
Alaska State Commission for Human Rights
800 A Street, Suite 204
Anchorage, AK 99501-3669
Toll-Free Complaint Hot Line (in-state only): 1-800-478-4692
TTY/TDD Toll-Free Complaint Hot Line (in-state only): 1-800-478-3177
Alternatively, an employee may file a private lawsuit in an appropriate court. If you choose to file a lawsuit, you should contact a lawyer.
Occupational Safety and Health: An employee may file a complaint with the Alaska Department of Labor and Workforce Development. The complaint must be filed within 30 days of the violation. An employee may file both a complaint and a common law wrongful discharge lawsuit. If you believe you have a claim, you should contact the Department immediately.
For questions about wrongful retaliation in violation of OSHA, you may contact the Division of Labor Standards and Safety at (907) 269-4946. Also, you may reach the Alaska Occupational Safety and Health Review Board at the following address:
Alaska Department of Labor and Workforce Development
1111 West 8th Street
P.O. Box 21149
Juneau, AK 99802
Phone (907) 465-2709
Fax (907) 465-2784
E-mail: [email protected]