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Covid-19 raises whistleblower issues, both in D.C. and in states

Whistleblowers have caught plenty of flak from the Trump administration, but the government has not been alone in its censorial impulses and punitive sanctions.

Captain Brett Crozier
Captain Brett Crozier, then-commanding officer of the U.S. Navy aircraft carrier USS Theodore Roosevelt, was reassigned after raising concerns about the widespread virus among his crew.
U.S. Navy/Mass Communication Specialist Seaman Alexander Williams/Handout via REUTERS

Truth, it has been long stated, is the first casualty of war.

That verity, first attributed to Greek playwright Aeschylus more than two millennia ago, is playing out in connection with the coronavirus pandemic as untruths are emitted on virtually a daily basis from the podium in the White House during the “war” on the COVID-19.

But another one of the countless casualties of the current crisis is the genre of employees known as whistleblowers. Those hardy souls include critics of governmental action as well as those who raise concerns, whether in the public or private sectors, about suspected violations of laws or rules.

A growing list

Whistleblowers have caught plenty of flak from the Trump administration and the self-proclaimed wartime commander in chief himself  on nearly a weekly basis and sometimes more often, as those who have raised concerns about how the administration has managed the crisis have been subject to retaliation or reprisals. The long list includes the reassigned captain of the beleaguered U.S.S. Theodore Roosevelt aircraft carrier, Brett Crozier, who raised concerns about the widespread virus among his crew; displaced Dr. Rick Bright, a biomedical researcher with the Department of Health and Human Services; removed inspectors general who serve as watchdogs for various agencies; and untold others who have either lost their positions for raising concerns that the administration deemed politically embarrassing or otherwise sought to suppress. While the aircraft commander may be reinstated because of public and political clamor, the others are not likely to be restored to their prior positions.

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But the government has not been alone in its censorial impulses and punitive sanctions. A number of medical institutions have issued gag orders to their staffs to tamp down critical reporting about what’s taking place in their institutions. Management in other private sector institutions have done likewise, retaliating against employees or threatening to do so for raising concerns about safety conditions in their facilities.

The scourge also has undoubtedly had the effect of deterring others from coming forward with their concerns, creating a chilling effect that has resulted in self-censorship by those individuals in order to avoid losing their jobs and joining the growing ranks of the unemployed.

There is very little protection at the federal level for whistleblowers. While there are some laws and rules that purportedly protect them, they have no recourse to civil lawsuits in order to safeguard their rights and remedy deprivations of them.

Minnesota’s whistleblower law

The situation is different in the states, including Minnesota, which has a strong whistleblower law. The Minnesota measure, which went into effect in 1987, was for years one of the weakest in the country. But in 2013 it was substantially broadened, elevating it to one of the most potent.

Marshall H. Tanick
Marshall H. Tanick
The major change consisted of a new provision that protects whistleblowers who make reports, in good faith, about actual or suspected violations of laws, regulations or rules. Under this provision, as long as an employee acts in “good faith,” with a sincere belief, the employee is entitled to legal protection against adverse action, including termination, if the employee actually believes a transgression has or may occur, regardless whether they turn out to be correct.

This measure has been effectively utilized by employees raising a number of concerns in the workplace, ranging from violation of internal corporate bylaws and other policies to disregard of workplace safety requirements to a myriad of other matters, some major and some minor.

The Minnesota courts, with some notable exceptions, have been generally supportive of the measure and the employees who rely upon it, Contrary to a series of generally unfavorable court rulings decades ago, employees have benefited from more hospitable court decisions lately under the strengthened current version of the law.

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In addition to protecting employees who raise concerns about suspected or actual illegalities in the workplace, as well as improper health care practices, the Minnesota law also covers employees who refuse to perform an act that they consider illegal, or who participate in a government investigation of the workplace, among other matters.

Of particular relevance in today’s environment, the Minnesota measure also protects health care workers who raise concerns about practices that are below an acceptance “standard” or are considered unethical. The law, which allows aggrieved employees recovery of lost wages, emotional distress, punitive damages, and reimbursement of legal fees, is supplemented by other whistleblowing measures, such as the Occupational Health and Safety Act (OSHA), which addresses health and safety issues in the workplace.

Allegations of COVID-related reprisals

There have been several reported instances of whistleblowing activities in Minnesota in connection with the COVID- 19 crisis, including some allegations of reprisals by employers against their workers, at coffee houses and delivery facilities, among other sites. By all accounts, the incidents are likely to increase. Whether these matters materialize into legal actions remains to be seen.

In the meantime, Minnesota employees can rest assured that they have strong protection, at least in the legal books, against retaliation for making good-faith concerns about improprieties in the workplace.

That gives them a leg up on federal employees, who are incessantly subject to actual and threatened retaliation for calling concerns to the attention of government officials or the public. That is a matter that ought to concern everyone during this “war” on the coronavirus.

Marshall H. Tanick is a Twin Cities employment law attorney and historian with the law firm of Meyer Njus Tanick.

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