1. What legal protection does South Carolina 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
South Carolina recognizes a 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 wrongful discharge when the motivation for the discharge violates public policy.
The public policy exception has been construed narrowly by South Carolina courts. An employee must demonstrate that the reason for the employee's discharge was because the employee refused to break the law, refused to participate in the employer's unlawful acts, or because the discharge itself violated criminal law. So, for example, an employee cannot be discharged for complying with a subpoena. However, whistleblowers may have trouble pursuing a wrongful discharge claim under the public policy exception, as courts have been reluctant to extend the exception to protect employees who report illegal activity.
In addition, the South Carolina General Assembly has adopted narrow statutory protections for certain activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: discrimination, occupational health and safety, 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. Specifically, South Carolina courts have protected the following employee activities:
- Refusals to violate the law
- Refusing to participate in an employer's unlawful conduct
- Filing a complaint under wage laws
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory 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 under the South Carolina Human Affairs Law. The South Carolina Human Affairs Law prohibits discrimination on the basis of race, religion, color, sex, age, national origin, or disability. S.C. Code Ann. § 1-13-80(F).
Occupational Health and Safety: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying, or exercising a right concerning occupational safety and health. S.C. Code Ann. § 41-15-510.
Public Employees: Public Employees may not be retaliated against for filing a report of wrongdoing with the appropriate authority. S.C. Code Ann. § 8-27-30.
Workers' Compensation: An employee may not be discharged (or discriminated against) in retaliation for instituting a proceeding or testifying in a proceeding under the South Carolina Workers' Compensation Law. S.C. Code Ann. § 41-1-80.
3. How do I file a whistleblower or retaliation claim in South Carolina?
Generally: An employee may file a wrongful discharge 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 South Carolina Human Affairs Commission (SCHAC). The complaint must be filed within 180 days of the retaliatory action. If you believe you have a claim, you should contact SCHAC immediately at:
South Carolina Human Affairs Commission
Post Office Box 4490
2611 Forest Drive, Suite 200
Columbia, SC 29240
Phone: (803) 737-7800
TDD: (803) 253-4125
E-mail: [email protected]
Occupational Health and Safety: An employee may file a complaint with the South Carolina Department of Labor. The complaint must be filed within 30 days of the retaliatory action. If you believe you have a claim, you should contact the Department of Labor immediately.
Workers' Compensation: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 1 year of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately.