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So You Want to Blow the Whistle?

Everyone has heard of it, but what really is the Ohio Whistleblower Protection Act (WPA)? Is the whistleblower a hero or a villain, a loyalist or traitor? One thing is clear. It is illegal for any public or private sector employer to harass, punish, or retaliate against an employee who has witnessed wrongdoing or unlawful activity and reported it. Generally speaking, the wrongdoing must be reported internally (to the company) and also may be reported externally (to the prosecuting attorney or any other public office or agency that has regulatory authority over the employer, industry, trade, or business).

The Act, found in section 4113.52 of the Ohio Revised Code, states that if an employee notices a violation of any work rule, company policy, state or federal statute or any ordinance or regulation of a political subdivision that the employer has authority to correct, and the employee reasonably believes the violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety, a felony, or an improper solicitation for a contribution, the employee shall notify his/her supervisor or other responsible officer of the violation. The employee also must submit a written report, to the same supervisor, which provides sufficient detail to identify the violation.

Once the report is received, the employer is required to undertake a good faith investigation to determine the accuracy of the report. If found credible, the employer must take swift and immediate action. The employer, within twenty-four hours after the oral notification was made or the report was received or by the close of business on the next regular business day following the day on which the oral notification was made or the report was received, whichever is later, must notify the employee, in writing, of any effort of the employer to correct the alleged violation or hazard or of the absence of the alleged violation or hazard.

Once reported, an employer may not take any disciplinary or retaliatory action against the reporting employee. Disciplinary or retaliatory action can include:

· Removing or suspending the employee from employment

· Withholding from the employee salary increases or employee benefits to which the employee is otherwise entitled

· Transferring or reassigning the employee

· Denying the employee a promotion that otherwise would have been received

· Reducing the employee in pay or position

The WPA demands the employee make a reasonable and good faith effort to determine the accuracy of any information reported. However, it also provides legal remedies for whistleblowers that are retaliated/discriminated against. This could be in the form of payment of back pay, reinstatement of position, reinstatement of full benefits, payment of attorney fees, and interest if the retaliation is found to be intentional.

Brian M. Zets

Managing Partner

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