1. What legal protection does Maryland provide 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
Maryland recognizes a limited public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates a "clear mandate" of public policy. An employee has a cause of action in other words, the employee may sue for abusive discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, Maryland 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 Maryland 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 Maryland's public policy. In both situations, employees are protected from retaliatory discharge.
In addition, the Maryland General Assembly has adopted narrow statutory protections 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 discrimination (equal pay), 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 a reason that violates a clear mandate of public policy. An employee must locate and point to a specific statute, constitutional provision, or prior judicial decision that forbids the employer's actions. Generally speaking, an abusive discharge claim attempts to protect employees who perform the following activities:
- Refusing to commit an unlawful or wrongful act
- Performing an important public function
- Exercising a statutory right or privilege.
With respect to whistleblowing activities, Maryland courts have afforded whistleblowers some protection, depending on who the employee discloses information to. An employee who "blows the whistle" on her employer's illegal activities by either testifying at an official proceeding or reporting a suspected crime to the appropriate law enforcement officials will be protected. However, reporting that same information to a supervisor likely will not be protected. This whistleblower protection derives from the statute that prohibits retaliation against people who report suspicious activity to the police. Also, an employee who refuses to engage in illegal activity, or who attempts to fulfill a duty required by law, will be protected from a retaliatory discharge.
An employee who sues her employer is not protected from retaliation, as Maryland courts have held that there is no clear mandate of public policy that prohibits an employer from discharging an employee for this reason. However, this is only the general rule for lawsuits; certain types of lawsuits (such as filing a lawsuit alleging "equal pay for equal work" violations or occupational safety and health infractions) are protected (see statutory protections, below).
Discrimination: An employee (or an applicant for employment) may not be discharged (or discriminated against) in retaliation for opposing a discriminatory employment practice. Nor may an employee be discharged (or discriminated against) in retaliation for making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing concerning unlawful discrimination in employment. Md. Ann. Code art. 49B, §§ 15, 16(f).
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, bringing a lawsuit or proceeding, testifying in a lawsuit or proceeding, or exercising a right under Maryland's occupational safety and health laws. Also, if an employee participates in group medical coverage, an employer may not discharge (or discriminate against) the employee on the basis of information gained from the employee's participation in the group medical coverage. Md. Code. Ann., Lab. & Empl. § 5-604.
Public Employees: An employee who discloses information about an abuse of authority, a substantial and specific danger to public health, or a violation of law. Md. Code Ann., State Personnel and Pensions § 5-305.
State Contractors: An employee of a state contractor who discloses information about an abuse of authority, gross mismanagement, a danger to public health or safety, a violation of law, or who refuses to participate in a violation of the law may be protected from retaliation. Md. Code Ann., State Finance and Procurement § 11-303.
Wage Discrimination (Equal Pay): An employee may not be discharged (or discriminated against) in retaliation for the following activities concerning the enforcement of equal pay laws:
- Making a complaint with the employer, the Commissioner of Labor and Industry, or another person
- Filing a lawsuit or proceeding
- Testifying in a lawsuit or proceeding
Employers may be fined up to $300 per violation. An employee may recover double damages in a lawsuit. Md. Code. Ann., Lab. & Empl. § 3-308.
Workers' Compensation: An employee may not be discharged in retaliation for filing a workers' compensation claim. An employer may be fined up to $500 and imprisoned up to one year for retaliating for this reason. Md. Code. Ann., Lab. & Empl. § 9-1105.
3. How do I file a whistleblower or retaliation claim in Maryland?
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.
Public Employees: an employee may file a claim with the Secretary within six (6) months of the alleged retaliatory action. If you believe you have a complaint, you should contact a lawyer. Md. Code Ann., State Personnel and Pensions § 5-309.
State Contractors Employees: An employee who believes they have a claim should file it in the appropriate court within one (1) year of the alleged violation. Md. Code ann. State Finance and Procurement § 11-304.
Discrimination: The procedure for filing a claim depends on the size of your employer:
- If your employer has less than fifteen permanent employees: An employee may file a lawsuit in an appropriate court. If you believe you have a claim, you should contact a lawyer immediately.
- If your employer has fifteen or more permanent employees: An employee may file a signed complaint with the Maryland Commission on Civil Rights, in writing and under oath. The complaint must be filed within six months of the retaliatory action. The Commission on Human Relations may be reached at the address below:
Maryland Commission on Civil Rights
William Donald Schaefer Tower
6 St. Paul St.
Baltimore, MD 21202-1631
Phone: (410) 767-8600