last update 8-19-2009
Louisiana's Whistleblower Laws
Louisiana has 3 different statutes that relate to the prevention of
an employee facing retaliation for having disclosed information about
the employer's conduct.
They are (1) a general provision relating to
all employees disclosing a "violation of law", (2) another that is directly
related to public employees and (3) a third
that is directly related to disclosures of environmental violations.
These three statutes are presented and discussed below.
General Provisions Relating All Employees
During 1997, the Louisiana Legislature passed a whistleblower law
located at RS 23:967
that is aimed at protecting all employees against employment reprisals relating
to their telling of "violations of law". Here is the statute:
A...An employer shall not take reprisal against an employee who in
good faith, and after advising the employer of the violation of law:
(1)..Discloses or threatens to disclose a workplace act of practice that is
in violation of state law,
(2)..Provides inormation to or testifies before any public body conducting
an investigation, hearing, or inquiry into any violation of law.
(3)..Objects to or refuses to participate in an employment act or practice
that is in violation of law.
B...An employee may commence a civil action in a district court where the
violation occurred against any employer who engages in a practice prohibited
by Subsection A of this Section. If the court finds the provisions of
Subsection A of this Section have been violated, the plaintiff may recover
from the employer damages, reasonable attorney's fees, and court costs.
C...For the purposes of this section, the following terms shall have the
definitions acribed below.
(1).."Reprisal" includes firing, layoff, loss of benefits, or any
discriminatory action the court finds was taken as a result of an action by
the employee that is protected under Subsection A of this Section; however,
nothing in this Setion shall prohibit an employer from enforcing an
established employment policy, procedure, or practice or exempt an employee
from compliances with such.
(2).."Damages" include compensatory damages, back pay, benefits, reinstatement,
reasonable attorney fees, and court costs resulting from the reprisal.
D...If suit or complaint is brought in bad faith or if it should be determined
by a court that the employer's act or practice was not in violation of the
law, the employer may be entitled to reasonable attorney fees and court costs
from the employee.
Comments on General Statute:
By the very nature of the wording of this statute, there must be a "violation
of law" for the employee to have a cause of action. However, it is a common
concept that when a law is suceptible of different meanings, it must be
interpreted as having the meaning that best conforms to the purposes of
the law (see La First Circuit case of Bunch vs Town of St Francisville).
To that extent, if there are laws and rules establishing that law enforcement
offices are to maintain certain levels of integrity, then investigating a case
without being independent of the parties would be a violation of that
law.
Be sure you have a claim first. In Price v B&B Transport Services, Inc
(unreported case at 2007 WL 1300932 La App 1 Cir), the court held that in order
to maintain an action for whistleblowing under LRS 23:967, the plaintiff must
allege a violation of state law as a basis for his claim. Further, the Court
pointed out that it must be state law that is violated and it was the
Federal Motor Carrier Safety Regulations that were violated in that case.
As a reminder of the first sentence of RS 23:967 which requires that there is
not to be a reprisal against an employee who (1) in good faith reports an
infraction and (2) after advising the employer of the violation of the law.
In Fondren v Grater N.O. Expressway Commission 871 So2d 688, the La
Fifth Circuit addressed this issue and determined that the plaintiff had
properly notified his supervisor and one of the members of the Commission, which
was sufficient to meet the requirement of advising the employer of the violation.
Further, in Accardo vs La Health Service & Indemnity, 943 So2d 381, the
First Circuit held that it is nor merely the allegations that a La law had
been violated but the claimant must be able to prove it. Simply being in
good faith and thinking that a law had been violated is not sufficient to
maintain the claim. The fact that a state law had been violated and that the
claimant must be able to prove that fact were also set out in Hale v Touro
at 886 So2d 1210. Puig v Grater N.O. Expressway 772 So2d 842, had the same
ruling but also said that under LRS 42:1169, a reasonable belief by the employee
that the employers acts are unlawful is sufficient under tha statute. Beard v
Seacoast Electronics, Inc, 951 So2d 1168 also held that a complaint involving
the rules of the Federal Communications Commission did not qualify as being a
violation of State law.
If the court finds that the suit was
brought in bad faith or that the employer's acts and practices were not in
violation of law, the court could award attorney fees against the employee
and in favor of the employer.
The La Fifth Circuit held in 2001 in the Nolan vs Jefferson Parish Hospital
Service, (790 So2d 725) case that this statute
requires that suit be brought within one year of the date of the employer's
action against the employee.
The La Fourth Circuit in 2004 Hale vs Touro held that under this statute,
plaintiff must show that the employer's practices were in actual violation
of a state statute, and not simply practices disagreed with or found
distasteful by the employer.
The Fourth Circuit also found in 2004 in Mendonca v Tidewater 862 So2d 505
that this statute only applies to conduct that occurs in Louisiana.
In Goldsby 861 So2d 236, the First Circuit held that the Court did not have
jurisdiction to reinstate a state employee or give him back pay since that
was the province of the
La Civil Service Commission. However, the Court did have jurisdiction to award
compensatory damages and reasonable attorney fees. Further and of significant
interest, the Trial Court found that the claimant failed to mitigate his damages
by obtaining other employment and the First Circuit affirmed the decsion.
It appears that the whistleblower statute does not provide a specific time
period in which to bring suit under LRS 23:967 so plaintiff's cause of action
is subject to the general one-year prescriptive peirod for delictual actions.
Langley v Pinkerton's Inc, M.D. La 2002, 220 F.Supp 2d 575. The date
that the one year period begins is the date of the change of status in
employment. The prescriptive period is suspended when a Federal suit has
been filed alleging a False Claims Act claim nd this interruption continued
until the Federal Court declined to exercise jurisdiciton over the state law
claims. Velazquez v Landcoast Insulation, Inc La App 3 CIR, 12-10-08,
2008 WL 5159202.
The Goldsby v State case at 861 So2d 236, First Circuit 2003, held that
the Civil Service Commissio had exclusive jurisdiciton to hear claims under
state whistleblower statute and that the District Court could not order the
employee's reinstatemnt, award back pay or award merit increases.
Statute relating to Public Employees and
Violations of the Governmental
Code of Ethics
A statute protecting public employees against employer retaliation was
first passed by the La Legislature in 1979 but has been amended several
times, as recently as 1999. RS 42:1169 provides:
A...Any public employee who reports to his agency head or the Board [of
Ethics] information which he reasonably believes is a violation of any
provision of law within the jurisdiction of the board or of any order,
rule, or regulation issued hereunder or any other alleged acts of
impropriety within any governmental entity shall be free from discipline
or reprisal for reporting said acts of alleged impropriety. No employee with
authority to hire and fire, supervisor, agency head, or other elected
official shall subject to reprisal any public employee because of said
employee's efforts to disclose such acts of alleged impropriety.
B...Any public employee who reports to a person or entity of competent
authority or jurisdiction information which he reasonably believes is a
violation of any law or of any order, rule, or regulation issued in
accorance with law or any other alleged acts of impropriety related to the
scope or duties of public employment or public office within any branch
of state government or any political subdivison shall be free from
discipline or reprisal for reproting said acts of alleged impropriety.
No employee with authority to hire and fire, supervisor, agency head, or
other elected official shall subject to reprisal any such public employee
because of said employee's efforts to disclose such acts of alleged
impropriety.
C...(1)..In the event that any public employee is suspended, demoted, or
dismissed in violation of this Section as an act of reprisal for reporting
an alleged act of impropriety, such employee shall report such action to the
Board [of Ethics].
(2) An employee who is wrongfully suspended, demoted, or dismissed shall be
entitled to reinstatement of his employemnt and entitled to receive any lost
income and benefits for the period of any suspension, demotion, or dismissal.
D...Any person who violates this Setion shall be subject to the same fines and
penalties provided for other violations of this Chapter.
Comments on statute relating to public employees
A separate statute, RS 42:1163 sets out a separate time period of two years
in which the employee can file a claim under the Code of Governmental Ethics
after the employer takes action against the employee.
In Puig, the La Fifth Circuit held in 2000 that although RS 42:1169
specifically applied to public employees, such public employees could also
have a valid cause of action under RS 23:967 if the facts fit that statute.
Thus, public employees were not limited to RS 42:1169.
The La Fifth Circuit case of Nolan had some interesting discussion
of the interplay
between RS 42:1169 and RS 23:967 and that discussion is stated here for
clairity.
"A review of the two statutes in question reveals that while they are both
"whistle-blower" statues, RS 42:1169 pertains to violations, or alleged
violations , of the Code of Governmental Ethics. In order for RS 42:1169 to
apply, a public employee must first report what he reasonably believes to
be a "violation of any provision of law within the jurisdiciton of the board
[of ethics] or of any order, rule, or regulation issued hereunder or any
other alleged acts of impropriety."
"RS 23:967 is clearly distinct, and targeted at more serious conduct, in that
it specifies that the employer must have committed a "violation of state law"
for an employee to be protected from reprisal. RS 42:1169 does not require
a violation of state law, merely an "alleged act of impropriety" under the
Code of Governemntal Ethics for the public employee to be protected from
discipline or reprisal.
Jurisdiction to enforce the Code of Governmental Ethics lies in the Board of
Ethics. (LRS 42:1132). The court found no private right of action under the
Code of Governmental Ethics; the employee's remedy is to complian to the
Board of Ethics, which then investigates and takes action to protect the
employee, if appropriate."
In the First Circuit case of Goldsby vs St of La, the Court held that
this statute only applies to violations of the Code of Ethics and if the
plaintiff did not report those violations to the Board, he has no cause of
action.
Statute Relating to Environmental Allegations
Revised Statute 30:2027 was adopted by the La Legislature in 1981 and was
amended in 1999. It provides the following:
A...No firm, business, private or public corporation, partnership, individual
employer, or federal, state, or local bgovernmental agency shall act in a
retaliatory manner against an employee, acting in good faith, who does any of
the following:
(1)..Discloses, or threatens to disclose, to a supervisor or to a public
body an activity, policy, practice of the employer, or another employer
with whom there is a business relationship, that the employee reasonably
believes is in violation of an environmental law, rule, or regulation.
(2)..Provides information to, or testifies before any public body conducting
an investigation, hearing, or inquiry into any environmental violation by the
employer, or another employer with whom there is a business relationship, of
an environmental law, rule, or regulation.
B...(1.)..Any employee against whom any action is taken as a result of acting
under subsection A of this Section may commence a civil action in a district
court of the employee's parish of domicile, and shall recover from his employer
triple damages resulting from the action taken against him and all costs of
preparing, filing, prosecuting, appealing, or otherwise conducting a law
suit, including attorney's fees, if the court finds that Subsection A of this
Section has been violated. In addition, the employee shall be entitled to
all other civil and criminal remedies available under any other state,
federal, or local law.
(2.)..(a)..The term "action is taken" shall include firing, layoff, lockout,
loss of promotion, loss of raise, loss of present position, loss of job
duties or responsibilities, imposition of onerous duties or responsibilities,
or any other action or inaction the court finds was taken as a result of a
report of an environmental violation.
(b).."Damages" to be tripled pursuant to Paragraph B(1) of this Section shall
be for the period of the damage, but not to exceed three years, and shall
include but not be limited to lost wages, lost anticipated wages due to a
wage increase, or loss of anticipated wages which would have resulted from a
lost promotion, and if the period of damage exceeds three years, the employee
shall thereafter be entitled to actual damages. In addtiion to the above,
"damages" shall also include any property lost as a result of lost wages, lost
benefits, and any physical or emotional damages resulting therefrom.
C. This Section shall have no application to any employee who, acting
without direction from his employer or his agent, deliberately violates any
provision of this Subtitle or of the regulations, or permit or license
terms and conditons in pursuance thereof.
Comments on Environmental statute:
Neither the statute nor any cases directly address the time period within
which a case should be brought. However, this statute has requirements that
are similar to RS 23:967 and should be considered to be controlled by
the general tort law and require that suit be filed within one year of the
employer's action against the employee.
In Bartlett vs Reese, 526 So2d 474, May 17, 1988, the La First Circuit
held that not only was
it illegal for an employer to terminate an employer for reporting an
environmental violation of the employer, it was also illegal to terminate
an employee for reporting a violation of another company, even if it was
a customer of the employer.
Cherami v J Wayne Plaisance, Inc, 595 So2d 619 1992, the Court held
that the section of the La Environmental Act (30:2027) for retaliating against
employees who report or compain about possible environmental violations is not
restricted to violations of that act and that the statute apples also to
violations of local and federal laws.
======================== WARNING =======================
AND DISCLAIMER
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed. Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a
attorney to discuss the specific facts of your case
and the law of your state.
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If you live in Louisiana and want to talk about your situation, please
call me at:
Marvin E. Owen
Attorney-CPA
3036 Brakley Drive
Baton Rouge, La 70816
ph 225-292-0099
toll-free 1-888-292-0116
e-mail marvin@meocpa.com
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