The Department of Health’s decision to put on leave a staff case investigator who exposed flaws in the state’s COVID-19 contact tracing program that led to a program overhaul and the departure of the state health director is raising questions about retaliation.
“Retaliating against a whistleblower sends a dangerously chilling message to others in our government who are doing the right thing, that they better toe the line or they will be punished,” U.S. Rep. Tulsi Gabbard said in response to Jennifer Smith’s forced paid leave from the department.
Hawaii has a law designed to protect people like Smith. The question is whether it will apply in her case. Smith has hired a lawyer but not yet filed a lawsuit, and it’s not clear whether she will. Still, her situation raises questions about how the state’s whistleblower law works and what protections workers have.
As Lt. Gov. Josh Green sees it, people like Smith should be encouraged to speak out.
“No one in Hawaii should ever have to fear retaliation if they express their concerns about how people are acting,” Green said in a text message. “This is America for god sake.”
Unfortunately, the law protecting people who speak out isn’t that simple.
Sneed said it’s important to note that whistleblower protections are found in numerous laws dealing with employment issues, not just Hawaii’s whistleblower protection statute. In addition, Sneed said, whistleblower cases are fact intensive. And many facts of Smith’s case have yet to emerge.
“It’s very hard at this stage to say whether she has a claim or not,” Sneed said.
Still, a close look at the state’s whistleblower statute does provide some insight into how lawyers and judges view such cases as well as the sorts of facts that will be relevant to Smith’s case.
Known as the Hawaii Whistleblower Protection Act, the 1987 law essentially protects a worker from retaliation by an employer if the worker reported or was about to report illegal activity by the employer.
A worker wrongly retaliated against — and being put on paid leave could qualify as retaliation, lawyers say — is entitled to a variety of types of relief including in some cases punitive damages. In one case, Smith’s lawyer, Carl Varady, won a jury award of approximately $3.8 million from The Queen’s Medical Center after the jury found an employee was harassed and discriminated against for blowing the whistle on suspected wrongdoing.
So the state faces a potentially big penalty if Smith can establish she has whistleblower protections that the DOH violated.
And in some ways, the law favors employees like Smith.
For example, the statute is broad when it comes to protecting an employee who blows the whistle. Employers can’t “discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment.”
“No one in Hawaii should ever have to fear retaliation if they express their concerns about how people are acting.” — Lt. Gov. Josh Green
But it’s narrower when it comes to what it considers whistleblowing. The employee’s report has to be made to a “public body” and it has to pertain to a violation or suspected violation of a state or federal law, rule, ordinance, regulation or contract.
Hawaii courts have boiled this down to three elements. For an employee to prevail in a whistleblower case, an employee must have “engaged in protected conduct,” the employer must take some “adverse action” against the employee and there must be “a causal connection between the alleged retaliation and the ‘whistleblowing.’”
Under this standard, a person could expose bad behavior and thus be a whistleblower in common parlance but not meet the legal definition of one.
Honolulu attorney Joseph Rosenbaum, who often represents employees in employment cases, said the issue on its face seems simple.
“Protected conduct simply means that the employee reported violations or suspected violations of the law or government contract,” he said.
Still, Rosenbaum echoed Sneed in saying that nailing down whether an employee did that takes a lot of work.
“That’s a very fact-specific question,” he said. “And that’s why these cases are difficult.”
But simply reporting a violation isn’t enough, he said.
There’s also an issue of to whom the employee is reporting. Blabbing to a friend or the media isn’t enough; the whistleblower generally must tell a government entity, he said.
In an interview, Smith’s attorney, Varady, said his client meets these standards. Congress has appropriated some $50 million in CARES Act money to the Department of Health for things like contact tracing, so there was a question about whether the department was properly spending that money, he said.
In addition, he said, the department’s case investigators were so understaffed that they were working untold overtime hours without pay, another legal issue.
The Attorney General’s Office declined an interview request for this article.
Assuming Smith’s speaking out met the legal definition of whistleblowing, there’s the additional question of whether putting her on paid leave is an “adverse action” according to the law.
Again, Hawaii courts have taken a broad view of this. In determining what’s an adverse action, in a 2008 opinion, Judge David Alan Ezra, a longtime U.S. District Court judge for Hawaii, applied a 9th U.S. Circuit Court of Appeals test for adverse employment actions in federal cases to a claim under the Hawaii whistleblower law.
Ezra said an action is an adverse employment action “if it is reasonably likely to deter employees from engaging in protected activity.”
The 9th Circuit was equally broad, saying adverse action included “lateral transfers, unfavorable job references, and changes in work schedules.”
Under this broad definition, being forced to leave work, even with pay, is an adverse action, Rosenbaum said.
“Even though they’re on leave with pay, it’s not like they’re on vacation,” he said.
Finally, there’s the final, perhaps most fact-intensive, question of whether the employer took the action because the employee blew the whistle.
The Hawaii Supreme Court outlined the method for unpacking this in a case in which a worker sued the Hawaii Department of Budget and Finance. The case set up a sort of burden-shifting ping pong game. First, the worker tries to present a reasonably strong case — or a “prima facie” case in legal jargon — that the whistleblowing “played a role in the employer’s action.”
One way to do this, the court said, is to show the employer cracked down soon after the employee blew the whistle. Or, as the court put it, “proximity in time is one type of circumstantial evidence that is sufficient on its own to meet the plaintiff’s burden.”
In Smith’s case, she was put on leave within weeks of blowing the whistle. That’s probably enough to establish the prima facie case, Rosenbaum said. It’s unusual for employers to do what the health department did, he said.
“Most savvy employers will do just the opposite,” he said.
But even if a plaintiff establishes the prima facie case, it’s hardly game over. The employer gets to come back and show it would have taken the adverse action regardless of whether the employee blew the whistle.
Here’s where an allegation that Smith threatened a co-worker comes in.
Details of that allegation are scant. The Department of Health has declined to discuss Smith’s case at all. And Smith only alluded to the accusation in a statement.
In an interview, Varady called it bogus, concocted by a co-worker loyal to Dr. Sarah Park, the state epidemiologist who also has been put on paid leave.
Threatening a colleague would seem likely to get an employee placed on leave; the question, Rosenbaum said, is whether it happened.
“An employer’s always going to come up with some reason” for taking adverse action against an employee, he said.
It’s usually the jury’s role to see if that reason meets “the laugh test,” he said.
If Smith threatened an employee as she’s accused of doing, the police likely would have been called immediately and there should be a report, he said. If the health department waited weeks after the purported incident to do anything, including removing Smith, that would suggest the incident didn’t happen or the threat was not serious.
Steven Levinson, a retired Hawaii Supreme Court justice, agreed. He said that if there’s no police report that’s “suggestive that this did not happen.”
Michelle Yu, a spokeswoman for the Honolulu Police Department, said the department did not have enough information to say if there had been a report of an incident involving Smith at the Department of Health in the past two months.
“Sorry, but that’s a common name and we don’t have a date, location, reporting person or the case classification,” Yu said.
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