1. What legal protection does Montana provide employees in regard to whistleblowing and retaliation?
Under the Wrongful Discharge From Employment Act (WDEA), Montana has, for all intents and purposes, abandoned the at-will employment doctrine, replacing it instead with a "for cause" requirement. An employee who has completed the probationary period of employment-a period of six months unless the employer specifies otherwise-may only be discharged for "good cause." An employee who is discharged for any other reason is said to be wrongfully discharged, and may seek redress. Not surprisingly, retaliation does not satisfy the "good cause" requirement.
In addition to its "for cause" requirement, the WDEA explicitly protects whistleblowers when the whistleblower reports wrongdoing related to public health, safety, or welfare.
The Montana State Legislature has also passed narrow protections for certain specific activities. Employees who report discrimination or who exercise rights relating to hazardous substances are specifically protected from discharge by statute.
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?
Wrongful Discharge From Employment Act: Montana enacted the Wrongful Discharge From Employment Act (WDEA) to protect employees from wrongful discharges. In Montana, a discharge is considered "wrongful" if one of the following is true:
- The discharge was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy (i.e. whistleblowing)
- The discharge was not for good cause, provided that the employee completed the probationary period of employment
- The employer violated the express provisions of its own written personnel policy
Thus, whistleblowers are protected under the first provision. As used in WDEA, public policy means "a policy in effect at the time of the discharge concerning the public health, safety, or welfare established by constitutional provision, statute, or administrative rule." Also, a whistleblower's suspicion does not need to turn out to be factually correct (i.e. the employer does not need to actually violate public policy), but rather, the employee must have a good faith belief that the employer's conduct violated public policy.
Moreover, the second provision requires that an employer have "good cause" for firing an employee who has completed the probationary period (6 months unless specified otherwise). Good cause means "reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason." A discharge for any other reason is considered a wrongful discharge.
Employees who have not completed the probationary period for employment, while not protected under the second provision (the "good cause" requirement), are still protected under the first and third provisions (the whistleblower protection and personnel policy violations, respectively).
The WDEA does not apply to employees covered by a written collective bargaining agreement or a written contract for a specific term. Mont. Code Ann. § 39-2-912(2). Nor does the WDEA apply to situations in which a more specific law-either state or federal-provides a remedy or procedure (for example, state and federal laws against discrimination). Otherwise, the WDEA is the exclusive remedy for an employee.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing discriminatory employment practices. Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying, assisting, or participating in an investigation/proceeding concerning workplace discrimination. Mont. Code Ann. § 49-2-301.
Hazardous Chemicals: An employee may not be discharged (or discriminated against) in retaliation for exercising rights, testifying, or assisting others in exercising their rights under the Employee and Community Hazardous Chemical Information Act. Mont. Code Ann. § 50-78-204(4).
3. How do I file a whistleblower or retaliation claim in Montana?
Wrongful Discharge From Employment Act: An employee must first exhaust all of an employer's internal grievance procedures before filing a lawsuit. If the matter cannot be resolved through that avenue within 90 days, an employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 1 year of the discharge. If you believe you have a claim, you should contact a lawyer immediately.
Discrimination: An employee may file a written complaint with the Montana Department of Labor & Industry. The complaint must be filed within 180 days of the retaliatory action. The complaint must state the name and address of the employer who committed the retaliatory action. If you believe you have a claim, you should contact the Department immediately at:
Human Rights Bureau
Montana Department of Labor and Industry
1625 11th Avenue
P.O. Box 1728
Helena, MT 59624-1728
Phone: (406) 444-2884
TDD: (406) 444-9696