Written By Attorney Melissa Morris

Several major release movies have dealt with true stories of employees who reported wrongdoing in the workplace to their bosses or other authorities.  Some have happy endings, some do not, but all portray the pain and stress suffered by the whistleblower before the story ended.

Frank Serpico (portrayed in “Serpico,” by Al Pacino) was shot in the face in January of 1971 in possible retaliation for his efforts to shine light on corruption in the NY City Police Department.  He survived and testified in October and November of 1971, received the NY City Police Dept Medal of Honor in 1972, and retired to Switzerland in 1972.

Jeffrey Wigand, (portrayed in “The Insider,” by Russell Crowe) claimed he was fired in 1993 from his job at Brown and Williamson for complaining internally about the company’s failure to live up to its promises to develop safer cigarettes.   His wife divorced him and he went from a $300,000 a year job to a job as a high school chemistry teacher.

Karen Silkwood, (portrayed in “Silkwood” by Cher Bono) a metallurgy worker at a plutonium processing plant, was purposefully contaminated, psychologically harassed and possibly murdered to prevent her from exposing worker safety violations at the plant.

The whistleblower may receive praise for his courage, but soon the praise dies away, leaving him jobless, or worse.   This unfairness has over many years motivated state and federal governments to pass laws protecting those who reveal wrongdoing in the job from losing their jobs or being harassed while keeping them.   A potential whistleblower may wonder however, “How well do those protections work?”

New Mexico Law. While federal protections for whistleblowers are a complex web of dozens of often contradictory laws and would require hundreds of pages to summarize and analyze, New Mexico law is less intimidating.  New Mexico is essentially an “at will” state, meaning that an employer may fire or discipline an employee for any reason, with certain specific, narrowly defined exceptions. 

For public employees (those who work for the state or federal government or one of their political subdivisions) there is a NM statute prohibiting retaliatory action against an employee who reports, gives testimony about, or refuses to take part in an action that the employee “believes in good faith constitutes an unlawful or improper act.”  An “unlawful or improper act” is one that violates any of the public agencies’ laws, rules or regulations, and must constitute malfeasance, gross mismanagement, waste of funds, an abuse of authority or a substantial and specific danger to the public.  Unfortunately, there are no NM court cases yet to tell us how the courts will define terms such as “malfeasance,” “abuse of authority,” “specific danger” etc…

For jobs with a private employer, although there is no statute like the one that applies to State or Federal employers, the courts have given protection to NM employees if their firing conflicts with some “clear mandate of public policy.” New Mexico’s common-law version of the whistleblower rule fits within this court-created protection.

When an whistleblowing employee may not be protected:

A husband and wife who reported to the management of the outfitter company they worked for that their immediate supervisor had been using drugs, were both fired a week later. The NM Supreme Court held that they weren’t entitled to compensation for wrongful termination because their purpose in reporting the supervisor had not been to protect the public, but to improve their own working conditions, and to help the company.  Had the supervisor’s job been of the type in which his drug use could have caused injury to a member of the public, (for instance, had he been a bus driver) the decision probably would have been different.

Also, a self-proclaimed whistleblower may lose his or her case if the employer can show that the employee was fired for other reasons, such as incompetence, inability to work with others, or excessive absences, even though that employee had also reported wrongful activities within the company.

Protected actions

The NM courts have said that an employee who files an OSHA complaint against his employer for safety violations, could recover damages from the employer who fired him in retaliation for making the complaint.

Presumably, an employee reporting that a medical company is diluting medications, or that a consumer product is clearly dangerous would be protected.  Also, one who reports the misuse of state or federal money, or criminal activity that involves unfair pricing, antitrust violations or tax fraud.

In summary:  Just because the employer is doing something wrong doesn’t mean that the employee who reports it and is fired as a result will be able to win a wrongful termination case.   Courts look at each of these cases on a case-by-case basis, so years of court proceedings may be required before an answer is forthcoming. And, if there was another legitimate cause for the firing, the whistleblower may still lose.

A report of wrongdoing that is made to benefit the employee making the report, but not members of the public, is not protected.  A report that is meant to make the company more efficient internally is not protected. A report made to prevent waste of public money, or to prevent harm to members of the public probably is protected.

If your conscience tells you to report wrongdoing, do so, but be aware that the loss of your job and either no compensation, or years of litigation may be the unfortunate result.

Finally, if you want to discuss the possible consequences of making a “whistleblower” report, call us .  We will be happy to discuss the benefits and dangers of doing so in more detail.