The Pennsylvania Whistleblower Law applies to public sector employees only; it prohibits an employer from discharging, threatening or otherwise discriminating or retaliating against an employee, or a person acting on behalf of an employee, who has made a good faith report of wrongdoing or waste to the employer or an appropriate authority, or when the employee is asked by an appropriate authority to participate in an investigation, hearing or court action. "Wrongdoing" is defined in the statute as any violation of any state, federal or local law, regulation, ordinance, code of conduct or code of ethics designed to protect the interest of the public or the employer.
The law allows an employee aggrieved by an alleged violation of its protections to file a civil action against the employer for an injunction and damages; such suit must be filed within 180 days of the alleged violation. Punitive damages are not available under the law, Rankin v. City of Philadelphia, 963 F.Supp. 463 (E.D.Pa. 1997). A plaintiff seeking damages under the law does not have the right to a jury trial, Clark v. Lancaster City Housing Auth., 14 Pa. D.&C. 4th 411 (1994); Wilhelm v. Borough of Braddock, 28 Pa. D. & C. 4th 211 (1996). Employers may defend by showing that they took action based upon a legitimate reason that was not a pretext for retaliation. Public employees, other than elected officials, who are found by the court to have committed a violation of the law with an intent to discourage disclosure of criminal activity may be suspended from public service for up to six months. Violators are also subject to a fine of up to $500.
The Whistleblower Law only applies to public employees who make a good faith report of wrongdoing or waste, as required by the statute, Johnson v. Resources for Human Development, Inc., 843 F.Supp. 974 (E.D.Pa. 1994); the law does not protect private sector employees, Holewinski v. Children's Hospital of Pittsburgh, Pa.Super. 174, 649 A.2d 712 (Pa. Super. Ct. 1994), appeal denied, 540 Pa. 641, 659 A.2d 560 (Pa. 1994). The law also does not define any general public policy of protecting whistleblowers who are employed in the private sector, Clark v. Modern Group Ltd., 9 F.3d 321 (3rd Cir. 1993); and will not provide the basis for a wrongful discharge suit by an at-will employee alleging termination in violation of public policy, Brown v. Hammond, 810 F.Supp. 644 (E.D.Pa. 1993). To come within the statutory definition of "wrongdoing", an employee must make a good faith report of an alleged violation of a statute or regulation of the type that the employer is charged to enforce for the good of the public, or is one dealing with the internal administration of the employer, Gray v. Hafer, 168 Pa.Commw. 613, 651 A.2d 221 (Pa. Commw. Ct. 1994), affirmed, 542 Pa. 607, 669 A.2d 335. Employees who do have a statutory remedy under the Whistleblower Law may not maintain an action for wrongful discharge, Freeman v. McKellar, 795 F.Supp. 733 (E.D.Pa. 1992).
In addition to the protection offered by the Whistleblower Law, the
Pennsylvania Administrative Code, S. 1.295 protects state employees who
report activity in an executive agency that constitutes mismanagement,
fraud, waste of funds. or a violation of law, rules or regulations. The
reporting must be made in good faith; employees who knowingly report false
information are not protected. Section 1.295 was adopted by Executive Order
No. 1979-11 (Sept. 12, 1979), and was amended by Executive Order No. 1987-7
(April 6, 1987).
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Text of Whistleblower Law:
TITLE 43. LABOR
CHAPTER 25. WHISTLEBLOWER LAW
§ 1421. Short title
This act shall be known and may be cited as the Whistleblower Law.
§ 1422. Definitions
The following words and phrases when used in this act shall have the
meanings given to them in this section unless the context clearly indicates
"Appropriate authority." A Federal, State or local government
body, agency or organization having jurisdiction over criminal law enforcement,
regulatory violations, professional conduct or ethics, or waste; or a member,
officer, agent, representative or supervisory employee of the body, agency
or organization. The term includes, but is not limited to, the Office of
Attorney General, the Department of the Auditor General, the Treasury Department,
the General Assembly and committees of the General Assembly having the
power and duty to investigate criminal law enforcement, regulatory violations,
professional conduct or ethics, or waste.
"Employee." A person who performs a service for wages or other
remuneration under a contract of hire, written or oral, express or implied,
for a public body.
"Employer." A person supervising one or more employees, including
the employee in question; a superior of that supervisor; or an agent of
a public body.
"Good faith report." A report of conduct defined in this act
as wrongdoing or waste which is made without malice or consideration of
personal benefit and which the person making the report has reasonable
cause to believe is true.
"Public body." All of the following:
(1) A State officer, agency, department, division, bureau, board, commission,
council, authority or other body in the executive branch of State government.
(2) A county, city, township, regional governing body, council, school
district, special district or municipal corporation, or a board, department,
commission, council or agency.
(3) Any other body which is created by Commonwealth or political subdivision
authority or which is funded in any amount by or through Commonwealth or
political subdivision authority or a member or employee of that body.
"Waste." An employer's conduct or omissions which result in substantial
abuse, misuse, destruction or loss of funds or resources belonging to or
derived from Commonwealth or political subdivision sources.
"Whistleblower." A person who witnesses or has evidence of wrongdoing
or waste while employed and who makes a good faith report of the wrongdoing
or waste, verbally or in writing, to one of the person's superiors, to
an agent of the employer or to an appropriate authority.
"Wrongdoing." A violation which is not of a merely technical
or minimal nature of a Federal or State statute or regulation, of a political
subdivision ordinance or regulation or of a code of conduct or ethics designed
to protect the interest of the public or the employer.
§ 1423. Protection of employees
(a) Persons not to be discharged.--No employer may discharge,
threaten or otherwise discriminate or retaliate against an employee regarding
the employee's compensation, terms, conditions, location or privileges
of employment because the employee or a person acting on behalf of the
employee makes a good faith report or is about to report, verbally or in
writing, to the employer or appropriate authority an instance of wrongdoing
(b) Discrimination prohibited.--No employer may discharge, threaten
or otherwise discriminate or retaliate against an employee regarding the
employee's compensation, terms, conditions, location or privileges of employment
because the employee is requested by an appropriate authority to participate
in an investigation, hearing or inquiry held by an appropriate authority
or in a court action.
§ 1424. Remedies
(a) Civil action.--A person who alleges a violation of this act
may bring a civil action in a court of competent jurisdiction for appropriate
injunctive relief or damages, or both, within 180 days after the occurrence
of the alleged violation.
(b) Necessary showing of evidence.--An employee alleging a violation
of this act must show by a preponderance of the evidence that, prior to
the alleged reprisal, the employee or a person acting on behalf of the
employee had reported or was about to report in good faith, verbally or
in writing, an instance of wrongdoing or waste to the employer or an appropriate
(c) Defense.--It shall be a defense to an action under this section
if the defendant proves by a preponderance of the evidence that the action
by the employer occurred for separate and legitimate reasons, which are
not merely pretextual.
(d) Civil service employees.--An employee covered by civil service
who contests a civil service action, believing it to be motivated by his
having made a good faith report, verbally or in writing, of an instance
of wrongdoing or waste, may submit as admissible evidence any or all material
relating to the action as whistleblower and to the resulting alleged reprisal.
§ 1425. Enforcement
A court, in rendering a judgment in an action brought under this act,
shall order, as the court considers appropriate, reinstatement of the employee,
the payment of back wages, full reinstatement of fringe benefits and seniority
rights, actual damages or any combination of these remedies. A court may
also award the complainant all or a portion of the costs of litigation,
including reasonable attorney fees and witness fees, if the court determines
that the award is appropriate.
§ 1426. Penalties
A person who, under color of an employer's authority, violates this act shall be liable for a civil fine of not more than $500. Additionally, except where the person holds an elected public office, if the court specifically finds that the person, while in the employment of the Commonwealth or a political subdivision, committed a violation of this act with the intent to discourage the disclosure of criminal activity, the court may order the person's suspension from public service for not more than six months. A civil fine which is ordered under this section shall be paid to the State Treasurer for deposit into the General Fund.
§ 1427. Construction
This act shall not be construed to require an employer to compensate
an employee for participation in an investigation, hearing or inquiry held
by an appropriate authority, or impair the rights of any person under a
collective bargaining agreement.
§ 1428. Notice
An employer shall post notices and use other appropriate means to notify employees and keep them informed of protections and obligations under this act.
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PENNSYLVANIA ADMINISTRATIVE CODE
TITLE 4. ADMINISTRATION
PART I. GOVERNOR'S OFFICE
CHAPTER 1. AGENCY OPERATION AND ORGANIZATION
SUBCHAPTER X. INSPECTOR GENERAL
Current through Supp. 288 (November, 1998)
§ 1.295. Complaints by employes; disclosure of identity; reprisals.
(a) The State Inspector General may receive and investigate complaints
or information concerning the possible existence of an activity in an executive
agency constituting a violation of law, rules or regulations, or mismanagement,
fraud, waste of funds, abuse of authority, malfeasance, misfeasance, nonfeasance
or a substantial and specific danger to the public health and safety.
(b) No person may take or threaten to take action against an employe
as a reprisal for making a complaint or disclosing information to the State
Inspector General, unless the complaint was made or the information disclosed
with the knowledge that it was false or with willful disregard for its
truth or falsity.
(c) The protections in this subchapter for employes who report, in good faith, fraud, waste, misconduct, malfeasance, misfeasance, nonfeasance or abuse are in addition and supplementary to protections provided by the Whistleblower Law (43 P. S. §§ 1421--1428).