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Issue Spotting Is Not Whistleblowing

Laws protecting whistleblowers generally afford anti-retaliation protections when employees “step out of their role” to report discrimination and dangerous or illegal activity, but not to employees when they are performing their issue spotting job duties.  Employers who understand this distinction are well positioned to manage underperforming employees in sensitive issue-spotting roles such as information technology, compliance, internal audit and even in-house counsel without running afoul of anti-retaliation laws.  The Second Circuit Court of Appeal’s recent decision affirming the Southern District of New York’s dismissal of whistleblower retaliation claims in Johnson v. Board of Education Retirement System of City of New York illustrates this distinction.

Plaintiff in the Johnson case worked as Manager of Infrastructure and Technical Services for the Information Technology group for less than a year before his termination.  During his short tenure, plaintiff reported a superiors’ improper use of employer computer resources to the school district’s Special Commissioner for Investigation, resulting in the superior’s demotion.  Plaintiff also reported that a technology vendor was failing to perform under its contract with the employer and may have been using malware to access employer systems.  Approximately four months after those reports, the employer terminated plaintiff’s employment.  Plaintiff filed suit alleging whistleblower retaliation and lost on summary judgment.  How?

Simply put, it was plaintiff’s job to detect and report misuse of employer computer systems and issues with technology vendors.  According to the district court, “the most sensible reading of the text and caselaw is that the crucial inquiry is whether the speaker intended to blow the whistle on wrongdoing or, rather, whether the speech was simply raising issues about matters relating to the complainant’s job.”  Employers who understand this distinction are better equipped to make appropriate personnel decisions.  Because the law in this area varies dramatically based on the applicable statute and jurisdiction, however, employers are strongly advised to consult with counsel before taking adverse action.