Connecticut Attorney General Proposes Changes to State's Whistleblower Laws - Part II
Yesterday, I summarized a proposal by Connecticut Attorney General Richard Blumenthal to revise the state's whistleblowing laws. The Hartford Courant reported on Wednesday that Blumenthal testified before members of the General Assembly's black and Latino caucus on that issue. Today, I'll take a look at it in more detail.
As I indicated yesterday, the Hartford Courant and others reporting on t
he case used the term "strengthen" to describe the changes to the laws. Although I'm not one for word-smithing articles, that term strikes me as a bit loaded for a few reasons.
First, it suggests that the state's whistleblower protection laws are "weak" -- which I'm not sure is the case. Second, it begs the question: how would it "strengthen" the laws and from what perspective? Third, what does it even mean to "strengthen" a law? And fourth, would this "strengthen" or affect existing constitutional retaliation claims that already exist to protect employees who report matters of public concern? The Courant's article, unfortunately, does not address these issues.
One issue that ought to be looked at, for example, is the proposal is to create a rebuttable presumption that an change in employment status (a transfer, for example) within three years of a person's complaint, is retaliatory. That creates a huge shield for employees and encourages them to file complaints -- even those that may not be warranted.
Moreover, such a proposal ignores what courts have been concluding over the years (see cases here and here for two recent examples): it is highly unlikely that an employer would wait a year -- much less three years -- to "retaliate" against such a complaint.
The U.S. Supreme Court said a few years ago in Clark County Schools v. Breeden, 532 U.S. 268 (2001) in a unanimous, unsigned opinion:
The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close."... Action taken (as here) 20 months later suggests, by itself, no causality at all.
Given the highest court's reasoned conclusion that a transfer or firing taken 20 months after a person's complaint does not suggest a connection between the two (and even highlighting cases that say 3 months is too long), what is the rationale behind the proposed legislation assuming such a connection up to 36 months later?
Another question that should be examined is whether the proper role of the AG's office is preserved. For example, on the AG's website, the AG's Department of Employment Rights indicates that it is designed to defend "state agencies and state officials in employment related litigation and administrative complaints and provides legal advice and guidance to state agencies on employment issues." Obviously, if the AG is interfering in whistleblowing cases, the AG's office cannot serve in a dual capacity -- representing the employees and the agency as well. How will such a determination be made if the AG's office is allowed to intervene as proposed?
Certainly a review of existing laws to update them and to ensure protection to whistleblowers is appropriate. And none of the issues I raise above are unresolvable. But before the legislature takes action, it should vet the provisions thoroughly. What makes for good headlines may not make for good law.
