1. What legal protection does Kansas 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
Kansas recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that contravenes 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, Kansas 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 Kansas 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.
There are several important limitations to the public policy exception. First, the public policy must be clearly declared by the legislature or the courts. Second, to be protected, the activity must serve the public, rather than the private, good. Thus, an employee who protests a company’s internal policies, even if the employee’s views are for the good of the company, will not be protected because the interests are private (the company’s interests), not public. Third, Kansas courts limit the common law public policy exception to situations where an employee has no adequate alternative remedy (see below).
In addition, the Kansas Legislature has adopted statutory protections for certain activities. Kansas has a whistleblower protection statute that protects certain communications made to the Secretary of Labor. In addition, employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: abuse of patients or residents, discrimination (including age discrimination), medical malpractice, and occupational safety and health.
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 state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that contravenes the public policy of the state. While the public policy exception protects numerous employee activities, two types of activities have been specifically addressed by courts: filing workers’ compensation claims and whistleblowing.
Workers’ Compensation: An employee may not be discharged in retaliation for filing a workers’ compensation claim. An employee must demonstrate that he either filed a workers’ compensation claim or suffered an injury for which he might assert a workers’ compensation claim. The employee must then show that the employer knew of the injury and that the employer terminated the employee because the employee filed the workers’ compensation claim (or might have filed the claim). Also of note, employees who were retaliated against in a manner short of termination specifically, employees who were suspended or demoted have also received protection.
Whistleblowing: An employee may not be discharged in retaliation for reporting (in good faith) suspected certain illegal activities serious infractions of rules, regulations, or statutes relating to public health, safety, and welfare by an employer or co-workers. The report must be made either internally to a supervisor or externally to law enforcement officials reports to other persons, such as the media, likely will not be protected. An employee must identify a specific rule, regulation, or statute that the employee suspected the employer violated. The employee’s suspicion does not need to be actually true, only reasonable. Thus, if it turns out that the employer was not violating the law, an employee may still be protected, so long as the employee’s suspicion at the time of the report was reasonable. Furthermore, the report must be performed for a good faith concern over the wrongful activity not done for malice, spite, jealousy, or personal gain. Like with workers’ compensation claims above, an employee must show that the employer knew of the whistleblowing report and that the employer terminated the employee because the employee blew the whistle.
Whistleblower Protection- Kansas Whistleblower Act: an employee of a state agency may not be retaliated against for discussing matter of public concern, including matters relating to public health, safety, and welfare with any member of the legislature or an auditing agency. Kan. Stat. Ann. § 75-2973.
Whistleblower Protection Testimony Before Secretary of Labor: An employee may not be discharged (or discriminated against) in retaliation for testifying as a witness before the Secretary of Labor, signing a complaint, or bringing to the attention of the Secretary of Labor any matter of controversy between employers and employees. This provision protects employees who testify in unemployment compensation proceedings. Kan. Stat. Ann. § 44-615.
Abuse of Resident of Adult Family Home or Care Facility: An employee may not be discharged in retaliation for making a report or cooperating with an investigation under Kansas laws concerning abuse or neglect of residents of adult family homes or care facilities. Kan. Stat. Ann. §§ 39-1403(b), 39-1432(b).
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing a practice prohibited by the Kansas Act Against Discrimination (KAAD). Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying, or assisting in any proceeding under the KAAD. The KAAD prohibits discrimination on the basis of race, religion, color, sex, disability, national origin, or ancestry. Kan. Stat. Ann. § 44-1009.
Discrimination Age: An employee may not be discharged (or discriminated against) in retaliation for opposing a practice prohibited under the Kansas Age Discrimination in Employment Act (KADEA). Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying, or assisting in a proceeding under KADEA. The KADEA prohibits discrimination against an employee on the basis of age. Kan. Stat. Ann. § 44-1113.
Health Care Medical Malpractice: An employee may not be discharged (or discriminated against) for reporting an act by a health care provider that either (1) falls below the applicable standard of care and there is a reasonable chance that it could injure a patient, or (2) would be grounds for disciplinary action by an appropriate licensing agency. Kan. Stat. Ann. § 65-4928.
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint or otherwise providing information to the Secretary of Labor concerning unsafe or hazardous conditions. Kan. Stat. Ann. § 44-636(f).
3. How do I file a whistleblower or retaliation claim in Kansas?
Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 2 years ⚖ of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer.
Kansas Whistleblower Act: an employee who believes he has a claim under the Kansas Whistleblower Act should file a claim within 90 days of the alleged disciplinary action with the state civil service board. If the employee is in the unclassified service the claim may be filed pursuant to the Kansas judicial review act. If you believe you have a claim, you should contact a lawyer. Kan. Stat. Ann.§ 75-2973.
Discrimination: An employee may file a complaint with the Kansas Human Rights Commission (KHRC). The complaint must be filed within 6 months of the retaliatory action. If you believe you have a claim, you should contact the KHRC immediately.
Kansas Human Rights Commission
900 SW Jackson, Suite 568-S
Topeka, KS 66612-1258
Discrimination Age: An employee should follow the same procedure outlined above for “Discrimination.”