Let’s start with a disclaimer, just so we’re all on the same page: What follows is not legal advice. Nothing in this post creates any sort of attorney-client relationship. Everything presented herein is informational, and every situation is different, so you should consult your attorney if you have any questions.
Cool? Cool. Good talk. Now let’s get down to business.
This morning, I received the following email:
This is a good question that, unfortunately, I expect will come up more than once over the next several months as school districts and the state as a whole continue to deal1 with COVID-19. So I don’t think it can hurt to look at what the Arkansas Whistle Blower Act2 (“WBA”) does–and does not–do.
Who is covered?
The WBA applies to a “public employee,” who is defined as “a person who performs a full or part-time service for wages, salary, or other remuneration for a public employer.”3 As is relevant for our purposes here, “public employer” specifically includes “A public school district, school, or an office or department of a public school district in Arkansas.”4 So, basically, anyone (teacher or otherwise) who is employed, full- or part-time by a public school, a public school district, or any subdivision of either of those.
What is covered or protected?
Under the WBA, a public employer is prohibited from taking “adverse action against a public employee because the public employee or a person authorized to act on behalf of the public employee” makes certain good-faith communications “to an appropriate authority.”5 These communications must be about either (a) a waste of public funds, property, or manpower, or (b) “a violation or suspected violation of a law, rule, or regulation adopted under the law of this state or a political subdivision of the state.”6 Additionally, a public employer cannot “take an adverse action against a public employee because the employee participates or gives information in an investigation, hearing, court proceeding, legislative or other inquiry, or in any form of administrative review”7 or “because an employee has objected to or refused to carry out a directive that the employee reasonably believes violates a law or a rule or regulation adopted under the authority of laws of the state or a political subdivision of the state.”8
There is a lot to unpack in that prior paragraph, so let’s break it down a bit.
First, the protections for the public employee apply where the communication is made by the employee or by a third party who is authorized to act on behalf of the employee. The statute does not limit who can be a third-party actor in this situation.
Second, the communication must be made “in good faith,” which is defined as where “there is a reasonable basis in fact for the communication.”9 So, while a person does not have to be certain of what has occurred, there must at least be a set of facts that would lead a reasonable person to believe that there has been a waste of public funds or a violation of a law/rule/regulation or that the employer was asking the employee to do something that violated a law/rule/regulation. Or, as the statute puts it, “Good faith is lacking when the public employee does not have personal knowledge of a factual basis for the communication or when the public employee knew or reasonably should have known that the communication of the waste or of the violation was malicious, false, or frivolous.”10
Third, as it relates to protected communications, the communication must be made to “an appropriate authority.” An “appropriate authority” is either (a) a government11 department, agency, or organization with jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics, or waste, or (b) “a member, officer, agent, investigator, auditor, representative, or supervisory employee of the body, agency, or organization.”12 Which means, unfortunately, the WBA does not apply where a public employee communicates about the waste/violation/etc. to, say, a news outlet.13
Fourth, and somewhat related to the previous paragraph, the WBA does not technically require that a person make a communication to an appropriate authority, or anyone else, where the protected activity is refusing to engage in activities that violate a law/rule/regulation or participating in one of the listed hearings/proceedings. Nevertheless, it would be a better practice for a public employee who is being asked to do something that violates a law/rule/regulation to at least notify a supervisor that the reason that the employee is not doing the act is because it would be such a violation. Importantly, the scope of this protected activity is pretty wide–it applies where an employer instructs an employee to do something that is an infraction or a breach “of a state statute or rule, of a political subdivision ordinance or regulation, or of a code of conduct or code of ethics designed to protect the interest of the public or a public employer,” as long as the breach is “not of a merely technical or minimal nature.”14
Fifth, where the WBA applies to a communication or action as outlined above, the public employer is prohibited from taking “an adverse action” against the employee for engaging in any of the protected activities. An “adverse action” is more than just a termination, and it “means to discharge, threaten, or otherwise discriminate or retaliate against a public employee in any manner that affects the employee’s employment, including compensation, job location, rights, immunities, promotions, or privileges.”15 Meaning, a threat to fire someone would be prohibited under the WBA, as would suspension, demotion, reassignment, forfeiture of leave days, or anything else that “affects the employee’s employment.”
What happens if the employer violates the WBA?
A public employee who alleges a violation of the WBA may bring a civil lawsuit for appropriate injunctive relief, actual damages, or both, within one hundred eighty (180) calendar days after the employer takes an adverse action action against the employee.16 This lawsuit may be brought in the county where the violation occurred or where the employee lives.17 To prevail in the lawsuit, the employee must show, by a preponderance of the evidence, that the employer took an adverse action against the employee because of the employee engaged in, or planned to engage in, an activity that is protected under the WBA.
This raises an important point. Specifically, that the WBA only prevents a public employer from taking an adverse action against an employee “because of” the employee’s engaging in an activity under the WBA. Whether the adverse action was “because of” the protected activity will, generally, be a question for the finder of fact in court, and the employee will have the burden of establishing that causal connection. But it is (obviously) going to be much harder for a public employee to establish that connection where the protected communication/activity was done in connection with other activities that are not otherwise covered, because the WBA specifically gives an employer an affirmative defense where the adverse action was because of a performance-related reason.18
If the employee is successful in their lawsuit under the WBA, the court may award any or all of the following: an injunction against the employer to prohibit further violations of the WBA; reinstatement of the employee to the prior job (including the same prior salary and conditions of employment) or an equivalent position; reinstatement of full fringe benefits and retirement credit; compensation for lost wages, benefits, and other remuneration; and payment of court costs and reasonable attorney’s fees incurred by the employee.19
As amended in 2017, the WBA also now allows for a public employee who was terminated in violation of the WBA to request an expedited hearing on the issue of reinstatement.20 If the employee convinces the court that a reasonable person would conclude that the employee was fired because of engaging in protected activities under the WBA, the court shall order either that the employee be reinstated pending resolution of the lawsuit or reinstated and paid on paid administrative leave pending resolution of the lawsuit.21
So how would this apply as it relates to COVID-19 in public schools?
As mentioned at the outset, every potential case and set of facts is going to be different, so there is no one-size-fits-all answer. But I think we can envision some scenarios and general guidelines here.
The most obvious way I could see the WBA being applicable would be if a teacher or other school employee had personal knowledge of facts demonstrating that the school was doing something that did not comply with the state’s rules and regulations related to COVID-19, whether that be distancing, tracking, reporting, or what have you. (I say that despite being fully aware that the state rules/regulations appear to be pretty amorphous and “flexible” as to what is required.) In that situation, an employee who reported the violation to either a supervisor or to the appropriate state agency would be covered under the WBA.
Similarly, a teacher or school employee could find themselves asked to provide information or testimony to an agency investigating a possible violation of state rules and regulations related to the pandemic. In that situation, the employee would be covered under the WBA for providing the requested information/testimony and for what was said in that testimony. The WBA does not require that a teacher notify the school or district about providing information/testimony in an investigation, but district rules might, and a safer bet would be to notify your supervisor prior to doing so, since the WBA provides protections where an employee “plans to engage” in protected activities.
I am aware that, in 2020, the urge will be there to communicate suspected violations more publicly, such as via Facebook or Twitter. Depending on what you are writing, it is possible that such posts would implicate First Amendment protections, but that is outside the scope of this post. All I can say as far as social-media posting relates to the WBA is that it is likely not going to be treated as communicating to “an appropriate authority,” which could leave you subject to discipline from the school, especially if the communication somehow violated the employment rules of your school or were seen as an ethical violation. So, while you are certainly free to do as you please, just be aware that doing so could make WBA remedies either more difficult or even impossible.
This whole situation that you teachers and school employees are being cast into sucks. Hopefully, none of you need the information in this post and everything goes as smoothly as it can in spite the lack of leadership and abundance of asinine decisions being made at the state level. But if it doesn’t go smoothly, I hope this post is helpful as you make the difficult decisions regarding if and when to report any violations of laws and rules and regulations that you might see or to provide testimony or information in an investigation after someone else reports a violation.
Stay safe, friends, and know that you are appreciated by so many parents and students.
Ark. Code Ann. 21-1-601, et seq.↩
Ark. Code Ann. 21-1-602(4)(A)↩
Ark. Code Ann. 21-1-602(5)(E)↩
Ark. Code Ann. 21-1-603(a)(1)↩
Ark. Code Ann. 21-1-603(a)(1)(A)-(B)↩
Ark. Code Ann. 21-1-603(c)↩
Ark. Code Ann. 21-1-603(d).↩
Ark. Code Ann. 21-1-603(b)(1)↩
Ark. Code Ann. 21-1-603(b)(2)↩
State, county, or local↩
Ark. Code Ann. 21-1-602(2)(A)(i)-(ii)↩
Whether a reporter could be considered an “authorized third party” under the WBA has never been addressed as far as I know, but such an argument would face an uphill battle in court to be sure.↩
Ark. Code Ann. 21-1-602(6)↩
Ark. Code Ann. 21-1-602(1)↩
Ark. Code Ann. 21-1-604(a)↩
Ark. Code Ann. 21-1-604(b)↩
Ark. Code Ann. 21-1-604(e)(1)↩
Ark. Code Ann. 21-1-605(a)(1)-(5)↩
Ark. Code Ann. 21-1-605(b)(1)↩
Ark. Code Ann. 21-1-605(b)(2)(A)-(B)↩