Alabama. Maybe, if discharge is "outrageous conduct." Ala. Code (1975) 25-5-11.1; Gold Kist v. Griffin, 657 So.2d 826, 829 (1994); but see Grant v. Butler, 590 So. 2d 254 (Ala. 1991) (OSHA remedy adequate). SOL 2 years.
Alaska. Yes. Alaska Whistleblower Act §39.90.100-150 (2006). Knight v. American Guard and Alert, Inc., 714 P.2d 788, 791-92 (1986). SOL 2 years, AS 09.10.070.
Arizona. Yes. ARS 23-1501. SOL 10 days for state employees; unknown for other employees. Also, the Arizona Division of Occupational Health and Safety ("ADOSH") can receive complaints of retaliation in violation of ARS 23-425(A). The time limit to file this type of complaint is thirty (30) days.
Arkansas. Maybe. Arkansas Whistle-Blower Act § 21-1- 601 (for public employees). MBM Co. v. Counce, 596 SW2d 681 (1980) (contract claim for violation of public policy); but see Newton v. Brown & Root, 658 SW2d 370 (1983) (claim disallowed when plaintiff violated safety rule because employer did not provide safe working conditions). SOL 180 days for public employees.
California. Yes. Jenkins v. Family Health Program, 214 Cal. App. 3d 440, 262 Cal. Rptr. 798 (1989); Hentzel v. Singer Co., 138 Cal. App. 3d 290, 188 Cal. Rptr. 159 (1982). SOL 1 year.
Colorado. Maybe. Martin Marietta Corp v. Lorenz, 823 P.2d 100, 108 (1992) (public policy tort allowed); but see Corbin v. Sinclair Marketing, 684 P.2d 265 (Colo. App. 1984) (disallowing claim when statute provides another remedy); Miles v. Martin Marietta Corp., 861 F. Supp. 73 (D. Colo. 1994) (OSHA remedy adequate). SOL 2 years.
Connecticut. Yes. Conn. General Statutes 31-51m (1982). 90 day SOL. But see Burnham v. Karl & Gelb, P.C., 1997 WL 133399 *5-6 (Conn. Super. Ct. 1997).
Delaware. Yes. 29 Del. § 5115 (for public employees); Delaware Whistleblowers’ Protection Act, 19 Del. § 1701. SOL 90 days for public employees; 3 years for general statute.
District of Columbia. Yes. Adams v. George W. Cochran & Co., 597 A.2d 28 (1991); Carl v. Children's Hosp., 702 A.2d 159 (D.C. 1997); Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999). SOL 3 years, per D.C. Code Section 12-301(8).
Florida. Yes. Fla. Stat. 448.101-105 (1991); 112.3187 (public employees); 39.203 (child abuse reports); 415.1036 (nursing home reports). SOL 4 years for tort claims, unknown for public employee claims.
Georgia. O.C.G.A. § 45-1-4 (public employees, SOL 1 year) and O.C.G.A. § 9-11-11.1 (free speech and right of petition). No private tort claim. Taylor v. Foremost-McKesson, Inc., 656 F.2d 1029 (1981).
Hawaii. Yes. HRS 378-63(9). 90 day SOL.
Idaho. Yes. Idaho Protection of Public Employees1 Act, Idaho Code § 6-2101, and sequence; Jackson v. Minidoka, 563 P.2d 54 (1977). SOL 180 days.
Illinois. Yes. Fredrick v. Simmons Airlines, Inc., 144 F.3d 500, 504-05 (7th Cir. 1998). SOL 5 years, per appellate decision.
Indiana. Yes. Frampton v. Central Indiana Gas Co., 297 N.E.2d 425, 428 (1973). SOL 2 years, but consider IOSHA's reputation for administrative enforcement.
Iowa. Yes. Financial and Other Provisions for Public Officers and Employees, § 70A.28 (for public employees). Fogel v. Trustees, 446 N.W.2d 451, 455 (1989). SOL 5 years, Iowa Code, Section 614.1.
Kansas. Yes. Kansas Whistleblower Act, K.S.A. § 75-2973 (for public employees). Flenker v. Willamette Industries, Inc., 967 P.2d 295, 298 (1998). SOL 90 days for public employees.
Kentucky. Maybe. KRS § 61.101, and sequence (for state employees). KRS § 216B.165 for health care whistleblowers. Public policy claim recognized in Firestone Textile co. v. Meadows, 666 SW2d 730 (1984), but not allowed when the statute provides its own remedy. Grzyb v. Evans, 700 SW2d 399 (1985). SOL 90 days for state employees using the statutory claim; SOL 5 years for others.
Louisiana. Yes for environmental complaints. LSA RS 23:967. However, for non-environmental complaints, employee must prove the underlying violation or face an employer claim for attorney fees. LSA RS 967(D). SOL 1 year.
Maine. Yes. 26 MRSA 831-840. SOL 6 months for complaint to Maine Human Rights Commission; 2 years for court action (which has fewer remedies).
Maryland. Maybe. Maryland Whistleblower Law in the Executive Branch of State Government, § 5-301, and sequence (for state employees). Public policy tort is recognized. Adler v. American Standard Corp., 538 F.Supp. 572 (D.Md 1982). Exception, though, if the statute provides its own remedy. Gaskins v. Marshall Craft Associates, Inc., 678 A.2d 615, 620 (Md. App. 1996). SOL 6 months for state employees using statutory claim; SOL 3 years for private tort claims.
Massachusetts. Yes. DeRose v. Putnam Management Co., Inc., 496 N.E.2d 428 (1986). SOL 3 years. Statutory claims for public employees, medical whistleblowers, and nursing home professionals have an SOL of 2 years. M.G.L. c. 149 Sec 185(d). Employees can pursue the common law claim, or the statutory claim, but not both. M.G.L. c. 149 Sec 185(f).
Michigan. Yes. MCLA c.149, Sec. 185. SOL 90 days.
Minnesota. Yes. MSA 181.932. SOL 2 years.
Mississippi. Yes. Protection of Public Employee from Reprisal for Giving Information to Investigative Body or Agency, Miss. Code Ann. § 25-9-171 (for state employees). McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 607 (1993). SOL unknown.
Missouri. Maybe. Public Officers and Employees, Miscellaneous Provisions, § 105.055 R.S. Mo. Smith v. Arthur Baue Funeral Home, 370 S.W.2d 249, 254 (1963). Union members must exhaust grievance and arbitration. SOL 30 days for administrative action by state employees, 90 days for court action by state employees, 3 or 5 years for tort claims. Claims may be preempted by available statutory remedies. See Trapp v. Von Hoffman Press, Inc., 2002 WL 1969650 (June 12, 2002); Osborn v. Professional Service Industries, Inc., 872 F.Supp. 679 (W.D.M. 1994)
Montana. Yes. Wrongful Discharge from Employment Act (WDEA), RCM 39-905, and sequence. Employees must exhaust employer grievance process. Employers can require binding arbitration. 1 year SOL.
Nebraska. Yes. Public policy exception recognized. Schriner v. Meginnis Ford Co., 421 N.W.2d 755 (1988). State employees are covered by the State Government Effectiveness Act- R.R.S. Neb. § 81-2701. SOL 4 years.
Nevada. Yes. Hansen v. Harrah's, 675 P.2d 394 (1994). SOL 2 years, Ch. 11.190.
New Hampshire. Yes. Whistleblowers’ Protection Act, NHRSA 275-E (1987). SOL is 3 years. Employees must first report violation to employer. The whistleblowers’ statute provides that an employee who alleges a violation of rights must make a reasonable effort to maintain or restore such rights through any grievance procedure or similar process available at the employee’s place of employment. The employee may then obtain a hearing with the Commissioner of Labor or a designee appointed by the Commissioner. The time for filing a grievance or similar action under an agency grievance procedure or similar process will be found in such procedure or process. Wrongfully discharged employees also have a tort claim. Porter v. City of Manchester, 849 A.2d 103, 113 (N.H. 2004).
New Jersey. Yes. Conscientious Employee Protection Act (CEPA), NJSA 34:19, 1 year SOL; Cerrachio v. Alden Leeds, Inc., 223 N.J. Super. 435, 538 A. 2d 1292 (1988); and Lepore v. National Tool and Mfg. Co., 224 N.J. Super. 463, 540 A. 2d 1296 (1988);
New Mexico. Yes. Weidler v. Big J Enterprises, 953 P.2d 1089 (NM App. 1997) (no OSHA preclusion). Governmental Conduct Act, N.M. Stat. Ann. § 10-16-1, and sequence (code of conduct, but no cause of action); Occupation Health and Safety, N.M. Stat. Ann. § 50-9-25 (private sector). SOL 30 days for administrative complaint; SOL unknown for tort claim.
New York. In part. Whistleblower Statute is limited to cases where actual public health or safety violation shown. Section 740(1)(e). Violation must ordinarily be reported to supervisor. 1 year SOL. A separate health care whistleblower law protects reporting violations based on a good faith belief, and allows a 2 year SOL. Section 741.
North Carolina. Yes. Retaliatory Employment Discrimination Act (REDA), N.C.G.S. § 95-240, and sequence. SOL 180 days. Public policy tort claim also available: Sides v. Duke Hosp., 328 S.E.2d 818 (1985); Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 693-694, 575 S.E.2d 46, 51-52 (2003). SOL 3 years.
North Dakota. In part. NDCC 34-01-20. SOL 90 days. Backpay limited to two years.
Ohio. Yes. Kulch v. Structural Fibers, Inc., 78 Ohio St. 3d 134, 677 N.E. 2d 308, 1997-Ohio-219. SOL 30 days for public employees to file administrative appeal with State Personnel Board of Review (R.C. 124.341(D)); 4 years for tort claims (R.C. 2305.09(D)); perhaps as long as 6 years for nursing home employee claims (R.C. 3721.24).
Oklahoma. Yes. Burk v. K-Mart Corp., 770 P.2d 24 (1989). Oklahoma Whistleblower Act, 74 Okl. St. § 840-2.5; Oklahoma Personnel Act, 74 Okl. St.§ 8401.2 (for state employees). SOL for state employee complaints to Oklahoma Merit Protection Commission is 60 days; SOL for other employees unknown.
Oregon. No. General public policy claim recognized, but exception applies if the law provides another adequate remedy. Walsh v. Consolidated Freightways, 278 Or. 347, 563 P.2d 1205 (1977) (OSHA remedy adequate).
Pennsylvania. Maybe. Public policy tort recognized where employee has duty to report or shows actual violation. Geary v. U.S. Steel Corp., 319 A.2d 174, 180 (1974). Applied to reporting nuclear safety issues. Field v. Phil. Elec. Co., 565 A.2d 1170 (1989). Whistleblower Law, 433 P.S. § 1421 (for public employees). SOL 180 days for public employees; SOL unknown for private sector.
Rhode Island. Yes. RI Gen. Law 28-50-1, and sequence. 3-year SOL.
South Carolina. Yes. General public policy tort recognized at Ludwick v. Minute of Carolina, Inc., 337 S.E.2d at 215 (1985). SOL 3 years.
South Dakota. Yes. Niesent v. Homestake Mining Co., 505 N.W.2d 781 (contract claim); Bass v. Happy Rest, Inc., 507 N.W. 317 (1993) (tort claim may be recognized). State employee grievance procedure is at S.D. Codified Laws § 3-6A-52. SOL unknown.
Tennessee. Yes. Tenn. Code 50-1-304. Tort claim may also be recognized. SOL 1 year.
Texas. Only for refusing to perform illegal act. Winters v. Houston Chronicle Publishing Co., 795 S.W. 2d 723 (1990); Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). SOL 2 years.
Utah. In part. General public policy claim recognized in Hodges v. Gibson Prods. Co., 881 P.2d 151, 166 (1991), applies only for retaliation against complaints to government agencies; no protection for in-house complaints. SOL 4 years.
Vermont. Yes. Payne v. Rozendall, 520 A.2d 586, 588 (1986). SOL unknown.
Virginia. Yes. Va. Code Ann. § 40.1-51.2.1. SOL 60 days to file administrative complaint with Virginia Commission of Labor and Industry. No private tort claim, Dray v. New Market Poultry, 518 S.E.2d 312 (1999). A civil action for fraud against the state may not be brought (i) more than 6 years after the date on which the violation is committed, or (ii) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the Commonwealth charged with responsibility to act, but in that event no more than 10 years after the date on which the violation has occurred. Virginia Fraud against Taxpayers Act, Va. Code Ann. § 8.01-216.1.
Washington. Yes, for wrongful discharge only. Warnek v. ABB, 972 P.2d 453, 458 (1999). Rev Code Wash. § 42.40.010 et. seq. and § 9.60.210 and 250. SOL 60 days to file administrative complaint with Human Right Commission; 3 years for law suit.
West Virginia. Maybe. General public policy exception to at will employment is reviewed on a case-by-case basis. Tiernan v. Charleston Area Medical Center, 506 S.E.2d 578, 585-86 (1998). SOL 2 years.
Wisconsin. Maybe. Narrow exception to at-will employment recognized, but employees must exhaust administrative remedies. Koehn v. Pabst Brewing Co., 763 F.2d 865 (7th Cir. 1985). SOL 6 years.
Wyoming. Maybe. Public policy tort recognized, but not if employee is protected by an independent scheme. Hermeck v. UPS, 938 P.2d 863, 866 (1997). State Government Fraud Reduction Act, Wyo. Stat. § 9-11-101, covers state employees. State employees must exhaust administrative remedies, and then bring court action within 90 days of final administrative decision. SOL for private sector unknown.
If you know of any changes to the law not shown on this chart, let us know.
States for which more work is needed, typically finding the SOL:
AZ, MS, MO, NM, OK, PA, SD, VT, WY
What would happen if you decided to file a state law tort claim, and the court eventually decides that the state claim is preempted by the federal administrative procedure? By the time the court makes this decision, the time limit for a federal administrative complaint (30, 90 or 180 days, depending on the law) would be expired. One court has held that if the state law claim was filed in state court within the time to file the federal administrative complaint, then the complainant can file the Department of Labor complaint after the state court action is dismissed. Turgeau v. Administrative Review Board, 446 F.3d 1052 (10th Cir. 2006). Turgeau, however, had to wait years through repeated Department of Labor dismissals to get this decision. Obviously, it would be best to have the advice of an experienced attorney at the beginning of this process.
When you shop around for an attorney, look for attorneys who have experience in employment matters, such as the members of the National Employment Lawyers Association (NELA).
The Truckers Justice Center handles cases for truckers nationwide. It may be contacted at: 900 West 128th Street, Suite 101, Burnsville, MN 55337, 651-454-5800, Fax 775.402.7561, http://www.truckersjustice.com/Trucking.shtml
The National Whistleblower Center maintains a lawyer referral service, which may be contacted as follows:
Project Manager
National Whistleblower Legal Defense and Education Fund
P.O. Box 3768
Washington, DC 20027
Phone: (202) 342-1903
Fax: (202) 342-1904
Email: info@whistleblowers.org
http://www.whistleblowers.org/
Intake Form
The Government Accountability Project (GAP) is a national, public-interest organization that provides advocacy and legal support to whistleblowers, and may be contacted as follows:
Government Accountability Project
West Coast Office - Intake Coordinator
1511 3rd Avenue, Suite 321
Seattle, WA 98101
Phone: (206) 292-2850
Fax: (206) 292-0610
Email: intake@whistleblower.org
http://www.whistleblower.org/
Intake Application
Public Employees for Environmental Responsibility (PEER) conducted a state-by-state survey of laws protecting public employees. Its survey provided much of the useful information on this page.
2000 P Street NW, Suite 240
Washington, DC 20036
(202) 265-7337
Fax: (202) 265-4192
email: info@peer.org
http://www.peer.org/state/index.php
More information?
The OSHA Act is available at:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=2743
Section 11(c) is at the end of this page:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=3365
A comprehensive source of information on OSHA, ALJ and DOL proceedings is:
Concepts and Procedures in Whistleblower Law
By Stephen M. Kohn Quorum Books. Westport, Conn. 2000. 576 pages LC 00- 027073. ISBN 1-56720-354-X. Q354 $135.
http://www.whistleblowers.org/html/nwc_publications.html
Researchers can access OALJ decisions in an excellent database at http://www.oalj.dol.gov/.
Other helpful resources include
- the OSHA web page: http://www.osha.gov/
- Local COSH groups (Committee on Safety and Health)
http://www.nycosh.org/health_safety_rights/eleven-c.html
http://www.nycosh.org/where_to_get_help/link-resources.html#anchor565960
Tate & Renner
505 N. Wooster Ave.
P.O. Box
8
Dover, OH 44622-0008
(330) 364-9900
(330) 364-9901 FAX
Email: rrenner@igc.org