A decision by a U.S. Court of Appeals has been called an important win for whistleblower protections. Employees in Connecticut and New York are protected from retaliation by employers for reporting some types of activity or conditions. The Court of Appeals for the Ninth Circuit rendered its opinion in Frost v. BNSF Railway Co., rejecting efforts by employers to establish a stricter burden on whistleblowers. The employers in the case attempted to advance a defense based on the honest belief of employers. The court disagreed.
In the case, the plaintiff brought suit under the whistleblower provision of the Federal Railroad Safety Act, claiming that he was fired for filing a report of an injury. The employer claimed the plaintiff had been fired for repeated safety violations. At the trial level, the employer won. The plaintiff appealed, claiming that the jury had been erroneously instructed. The jury was told the employer could not be held liable for retaliation under the whistleblower protections of the FRSA if the employer had an honest belief that the employee had broken safety rules.
On appeal, the Ninth Circuit ruled the instruction was erroneous in that it applied a stricter burden of proof than the contributing factor causation required by the law. The ruling is potentially significant because it rejected the employer's effort to change the causation standard created by statute. The standard is designed to give whistleblowers generous protections. Requiring the whistleblower to prove that the employer acted with malice or allowing the employer to defend itself based on honest belief would strip away much of that protection.
In cases where an employee is terminated or otherwise retaliated against by an employer for protected acts, an attorney might be able to help. An attorney with experience handling whistleblower cases might examine the facts of the case for causes of action. He or she might draft and file a complaint for relief or attempt to negotiate a settlement with the employer.