1. What legal protection does Indiana 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
Indiana recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that contravenes public policy. An employee has a cause of action in other words, the employee may sue for retaliatory discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, Indiana 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 Indiana 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 Indiana's public policy. In both situations, employees are protected from retaliatory discharge. Additionally a recent ruling provides that an employee should not suffer constructive discharge, or be forced to suffer intolerable working conditions in retaliation for Whistleblowing. Tony v. Elkhart County, 918 N.E.2d 363 (Ind. Ct. App. 2009).
In addition, the Indiana General Assembly has adopted narrow statutory protections for certain activities. Indiana protects a limited class of whistleblowers employees of private employers under public contract in certain instances. Also, several other Indiana statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination (including age discrimination), occupational health and safety, and wage laws (including minimum wage and equal pay laws).
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 contravenes public policy. Specifically, Indiana courts have protected the following employee activities:
- Filing a workers' compensation claim (includes stating an intent to file a workers' compensation claim)
- Exercising a statutorily conferred right or duty
- Refusing to commit an illegal act
Whistleblowing - Public Contractors: An employee of a private employer that is under public contract may not be retaliated against for reporting the misuse of public resources or violations of federal, state, or local laws. To receive protection under this statute, an employee must make a reasonable attempt to verify that the reported information is correct.
If the employee believes that someone other than the employer is violating the law or misusing public resources, the employee must first report the wrongdoing to the employer. If, on the other hand, the employee believes that the employer is violating the law or misusing public resources, the employee may report the wrongdoing to either the employer or an appropriate government official (such as county prosecutor, attorney general, or state personnel director) . If no good faith attempt to correct the wrongdoing is made in a reasonable amount of time, the employee may report the wrongdoing to any person, agency, or organization. Ind. Code § 22-5-3-3.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, testifying in a hearing before the Indiana Civil Rights Commission, or assisting the Commission in an investigation. Ind. Code § 22-9-1-6(h).
Discrimination Age: An employee may not be discharged in retaliation for furnishing evidence in connection with a complaint under Indiana laws concerning age discrimination. Ind. Code § 22-9-2-8.
Occupational Health and Safety: 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 (either on behalf of herself or others) under Indiana's Occupational Health and Safety Law of 1971. Ind. Code § 22-8-1.1-38.1.
Wage Laws Minimum Wage Equal Pay: An employee may not be discharged (or discriminated against) in retaliation for instituting an action to recover wages or demanding payment of wages under Indiana laws concerning minimum wages and equal pay provisions (discrimination in pay on the basis of sex prohibited). Ind. Code § 22-2-2-11(a)(1).
3. How do I file a whistleblower or retaliation claim in Indiana?
Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 2 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 Indiana Civil Rights Commission (ICRC). A complaint must be filed within 180 days of the retaliatory action. If you believe you have a claim, you should contact the ICRC immediately. The ICRC web site provides a step-by-step guide to the complaint process, along with agency contact information.
Discrimination Age: An employee may file a complaint with the Indiana Department of Labor. If you believe you have a claim, you should contact the Department immediately.
Occupational Health and Safety: An employee may file a complaint with the Indiana Department of Labor, Occupational Safety and Health Division (IOSHA). The complaint must be filed within 30 days of the retaliatory action. If you believe you have a claim, you should contact IOSHA immediately.
Indiana Department of Labor
Indiana Government Center - South
402 W. Washington Street, Room W195
Indianapolis, IN 46204
Phone: (317) 232-2655
TT/Voice: (800) 743-3333
Fax: (317) 233-3790