Whistleblower Protection Has Limits

The efforts to encourage and protect whistleblowers have been wide-reaching. However there are differences between the rewards and the protections based on the agency and laws involved. A recent case entitled Gary Vander Boegh v. EnergySolutions, Inc. demonstrated that not all protections are equal.

Mr. Vander Boegh had previously engaged in a range of protected activities as landfill manager for the U.S. Department of Energy (“DOE”), including reporting environmental violations and violations of the False Claims Act.  When he applied for the same job with a successor entity, he lost the job to another candidate.  Mr. Vander Boegh alleged this passover represented retaliation for prior protected conduct in violation of federal statutes.

The language of the statutes cited describes protection for an employee, yet they fail to define the term. For the plain language definition, the Appeals Court looked to Black’s Law Dictionary 639 (10th ed. 2014), which stated an employee is:

“[s]omeone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance.”

And Random House Webster’s Unabridged Dictionary 638 (2001), which provided:

An “employee” is also commonly defined as “[a] person working for another person or a business firm for pay.”

The Sixth Circuit Court of Appeals ultimately held that based upon the plain language in the protections, namely the omission of reference to applicants for employment, that a potential employer may chose not to hire an applicant who is a prior whistleblower. As a result, the Court granted summary judgment in favor of the defendants based on the plaintiff’s lack of standing as an applicant, not an employee.  This link provides more detail on this case involving the definition of a whistleblower.

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