1. What legal protection does Arkansas 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
Arkansas recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee in a manner that violates 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, Arkansas 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 Arkansas 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 public policy. In both situations, employees are protected from retaliatory discharge.
In addition, the Arkansas General Assembly has adopted narrow statutory protections for certain activities, such as opposing civil rights violations and filing workers' compensation claims.
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 violation of Arkansas public policy. Specifically, Arkansas courts have protected, or indicated that they would protect, the following activities:
- Reporting violations of state or federal law (i.e. whistleblowing)
- Refusing to violate a criminal statute
- Exercising a statutory right (e.g. filing for workers' compensation insurance)
- Complying with a statutory duty
Employers therefore do not have an absolute right to terminate employees. When an employee acts in the public interest - for example, by reporting to a government agency that his company is defrauding the government - this conduct is protected from retaliatory discharge. When an employee's acts are for a private interest, however, the common law does not protect such conduct. In other words, if an employee acts in the best interests of his company, but his acts have no bearing on any interest that benefits the general public, this conduct is not protected.
Public Employees: A public employer may not discriminate against a public employee reports waste or a violation of the law to an appropriate authority. Generally, an appropriate authority is an entity like the Office of the Attorney General or some other organization with the power to investigate the claims made. Ark. Code Ann. § 21-1-601
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an activity that violates state civil rights laws (provided that the opposition was done in good faith). Nor may an employee be discharged (or discriminated against) in retaliation for testifying, making a charge, assisting, or participating in an investigation or proceeding concerning unlawful discrimination. Arkansas law prohibits discrimination on the basis of race, religion, national origin, gender, and disability. Ark. Code Ann. § 16-123-108.
Workers' Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing a workers' compensation claim. An employer who violates this provision may be fined up to $10,000 and found guilty of a felony. Ark. Code Ann. § 11-9-107.
3. How do I file a whistleblower or retaliation claim in Arkansas?
Generally: An employee may file a lawsuit in an appropriate court. The complaint must be filed within three years of the retaliatory action, unless otherwise specified by statute. Claims made under the Arkansas Whistleblower Statute must be made within 180 days of the adverse action. The statute of limitations can be shortened by contract, so be sure to check any employment contract for a specific statute of limitations on wrongful termination claims. If you believe you have a claim, you should contact a lawyer.
Discrimination: An employee may file a private lawsuit in an appropriate court. The lawsuit likely must be filed within one year of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately.