Municipal Newsletter Fall 2011

The Pennsylvania Whistleblower Law

The “Whistleblower Law” in Pennsylvania, 43 P.S. §1 421 et seq., is a law that impacts all employers, including municipalities and authorities, even though most do not even know it exists. Still, just because something is not prevalent does not mean it does not have the potential to have a great impact.

§1422 of the statute identifies a whistleblower as any “person who witnesses or has evidence of wrongdoing or waste while employed and who makes a good faith report of the wrongdoing or waste, verbally or in writing, to one of the person’s superiors, to an agent of the employer or to an appropriate authority”. It is important to note that the person making the report must believe it to be true, must not have any malice towards the subject of the report and must not receive or expect any personal benefit.

As a result of the holding in Rankin v. City of Philadelphia, 963 F. Supp. 463, 1995-1997 the Whistleblower Law is applicable to municipalities and authorities. The Court in Rankin declared a public body may be held liable for violation of the statute. Per the statute, a public body may be:

1. A State officer, agency, department, division, bureau, board, commission, council, authority or other body in the executive branch of State government;
2. A county, city, township, regional governing body, council, school district, special district or municipal corporation, or a board, department, commission, council or agency;
3. Any other body which is created by Commonwealth or political subdivision authority or which is funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body.

The employee, or someone acting on his/her behalf, is afforded certain protections, precluding the employer from discharging, threatening, discriminating or retaliating against the employee relative to the employee’s compensation, terms, conditions,  location or privileges. These restrictions upon the employer are not only for protection of the employee already making a report but also the employee preparing to make such a report. In addition, the employer cannot discriminate against an employee who is requested by a regulatory or law enforcement authority to participate in an investigation, hearing or inquiry.

Should an employee who makes a report find himself/ herself the victim of retaliatory action, the employee has one hundred eighty (180) days to pursue a civil action for relief under this statute. In presenting his/her case, the employee must show, by a preponderance of the evidence, that before the alleged reprisal, such as reduction in pay, demotion or termination, the employee, or someone acting on the employee’s behalf, was in the process of making the good faith report to any of the aforementioned individuals or entities. That is, the evidence must show the alleged reprisal was directly connected to the employee’s actual or intended reporting. Conversely, the employer must show by a preponderance of the evidence the termination or other alleged reprisal was done separately from the actual or intended reporting.

As with other concerns of employment, the statute requires the employer to post notices and use other means to keep employees informed of the protections and obligations under the Whistleblower Law.