North Carolina's Whistleblower Act prohibits employment retaliation against a state employee who files a report alleging certain categories of misconduct or mismanagement by other state employees or agencies. Aggrieved state workers can file a suit in superior court under the Whistleblower statute, or demand a hearing with the Office of Administrative Hearings under the State Human Resources Act (formerly the State Personnel Act).
The Act states in relevant part:
(a) It is the policy of this State that State employees shall be encouraged to report verbally or in writing to their supervisor, department head, or other appropriate authority, evidence of activity by a State agency or State employee constituting:
- 1) A violation of State or federal law, rule or regulation
- (2) Fraud;
- (3) Misappropriation of State resources;
- (4) Substantial and specific danger to the public health and safety; or
- (5) Gross mismanagement, a gross waste of monies, or gross abuse of authority.
b) Further, it is the policy of this State that State employees be free of intimidation or harassment when reporting to public bodies about matters of public concern, including offering testimony to or testifying before appropriate legislative panels."
"No head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge, threaten or otherwise discriminate against a State employee regarding the State employee's compensation, terms, conditions, location, or privileges of employment because the State employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, any activity described in G.S. 126-84(above), unless the State employee knows or has reason to believe that the report is inaccurate."
Proof of a Whistleblower Violation
The North Carolina Supreme Court has stated that there are at least three ways for an aggrieved worker to establish a causal connection between a protected activity and an adverse employment action protected by REDA:
1. An employer's admission that it took adverse action against the plaintiff solely because of the protected activity. This is, for obvious reasons, rare.
2. Circumstantial evidence: commonly referred to as pretext cases, these involve a shifting burden of persuasion. A worker establishes a temporal relationship between the protected activity and the adverse employment action, the employer then tries to convince the court that the adverse action was for reasons unrelated to the right exercised, and then the worker works to establish that the stated reason is a pretext and that the real reason was the exercise of REDA-protected rights. This is a factually complicated approach, and the worker's disciplinary and performance-review history comes into play.
3. Mixed-motive cases: When an employer takes adverse action and claims good reason for it, but the employee has direct evidence (smoking gun) of a retaliatory motive, the employee may seek to prove that even if the legitimate basis for discipline existed, unlawful retaliation was nonetheless a "substantial causative factor" for the adverse action. The burden then shifts back to the defendant to prove by a preponderance of evidence that it would have reached the same decision as to the employment action at issue even in the absence of the protected conduct. This requires direct evidence that an illegitimate criterion was a substantial factor in the employment decision.
The North Carolina Whistleblower Protection Act provides a shield for a limited class of public employees who speak out about specific instances of governmental misconduct. The rights should be approached carefully, and preferably with the assistance of legal counsel. If you would like to speak with an attorney about taking action that you think should be protected under the Whistleblower Act, make an appointment to consult one of the experienced employment law attorneys at Edelstein & Payne by calling 919.828.1456 or by filling out the intake form on our Employment Law page.