1. What legal protection does the District of Columbia provide private sector employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
The District of Columbia recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates public policy. An employee has a cause of action-in other words, the employee may sue-for wrongful discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, D.C. courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a D.C. statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening public policy. In both situations, employees are protected from retaliatory discharge.
In addition, the Council of the District of Columbia has adopted statutory protections for certain activities. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: discrimination, false claims actions, health care employees, minimum wage, occupational safety and health, and workers’ compensation.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does district law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that violates public policy. Employees who refuse to perform illegal acts as a condition for employment are protected under the public policy exception. Also, employees who report employer wrongdoing are protected in certain situations. These whistleblowing employees are protected when their employer violates public policies expressed in statutes (such as criminal statutes), regulations (such as food & safety regulations), or constitutional provisions. Protected actions include exercising first amendment rights, refusing to participate in activities that do not meet governmental regulations, filing health complaints, reporting unlawful conduct, and threatening to report unlawful conduct.
An employee must report wrongdoing to the appropriate authorities to receive protection. An employee who reports wrongdoing to a public body (such as a law enforcement agency) is protected. Additionally, an employee who reports wrongdoing to an authority within the company (such as a supervisor) is protected. However, reporting wrongdoing to the media or family/friends may not be protected.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for exercising a right recognized under the District of Columbia’s Human Rights Act. Nor may an employee be discharged (or discriminated against) in retaliation for making a charge, testifying, assisting in an investigation, or opposing an unlawful discriminatory practice under the Act. Under the Act, employers may not discriminate on the basis of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, disability, matriculation, or political affiliation. D.C. Code § 2-1402.61.
False Claims Action: An employee may not be discharged (or discriminated against) in retaliation for lawfully disclosing information concerning a false claims action to a government or law enforcement agency. D.C. Code § 2-308.16.
Health Care Employees: An employee of a long-term care facility may not be discharged (or discriminated against) in retaliation for making communications with the D.C. Long-Term Care Ombudsman Program. The communication must be made in good faith. D.C. Code § 7-702.07(b).
Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, or testifying at a proceeding concerning a violation of minimum wage laws. D.C. Code § 32-1010(3).
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, exercising a right, or performing a duty concerning occupational safety and health. Additionally, an employee may not be discharged for refusing to perform work that could endanger the employee or would violate health and safety rules. D.C. Code § 32-1117.
Public Employees: Generally, employees of the District of Columbia may not be discharged (or discriminated against) for reporting gross mismanagement, gross misuse of waste of public resources of funds, abuse of authority, or other violation of federal, state or local law. DC Code § 1-615.53.
Workers Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing a workers’ compensation claim or testifying in a workers’ compensation proceeding. D.C. Code § 32-1542.
3. How do I file a whistleblower or retaliation claim in the District of Columbia?
Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within three years ⚖ of the retaliatory action. If you believe you have a claim, you should contact a lawyer.
Discrimination: An employee may file a complaint with the D.C. Office of Human Rights. The complaint must be filed within one year of the retaliatory action. If you believe you have a claim, you should contact the Office of Human Rights immediately at:
Office of Human Rights
441 4th Street, NW, Suite 570 North
Washington, DC 20001
Phone: (202) 727-4559
Alternatively, an employee may file a private lawsuit in an appropriate court. The lawsuit must be filed within one year of the retaliatory action. If you believe you wish to file a lawsuit, you should contact a lawyer immediately.
Occupational Safety and Health: Employees may file a complaint with the Commission of Occupational Health and Safety. This complaint must be made within 60 days of the retaliatory action. The Commission will then determine whether a violation has occurred. The Commission has 90 days to notify the employee of its determination. You may contact their office at:
DC Department of Employment Services
Labor Standards Bureau
Office of Occupational Safety & Health
64 New York Avenue, NE, 2nd floor
Washington, DC 20002
Phone: (202) 671-1800
Fax: (202) 673-2380