Mixed messages for whistleblowers?

Mixed messages for whistleblowers?

- in Weekly Briefing

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Editor’s note: Governor Pat McCrory issued a veto for HB 405 (the so-called Ag-Gag bill) on Friday urging lawmakers to add protections for employees who report
illegal activities to authorities.

“Ag Gag” proposal, “Burt’s Law” push in opposite directions

Governor McCrory signed a bill yesterday that is designed to spur action from would-be whistleblowers who work in the group home and nursing home industries. The new statute, which has been dubbed “Burt’s Law” in recognition of a developmentally disabled man who was sexually abused by a manager in a Catawba County group home, would make it a crime for employees or volunteers in such facilities not to report such information.

Under the new law, employees and volunteers at specified facilities that treat individuals with mental illness, developmental disabilities or substance abuse would commit a Class AI misdemeanor (which could result in jail time) if they “witness a client become a victim” of specified sex-related crimes and fail to report it within 24 hours.

The new law also raises penalties for failure to report other harms to clients and creates a new offense for employees or volunteers who borrow or take personal property from such clients.

The bottom line and quite laudable objective of the statue: to protect innocent people from bad actors in an industry entrusted with their care. As the Governor said during a signing ceremony yesterday:

“There is no excuse for staying silent if you see abuse. We’re all going to have to trust someone sometime in our life, but if anyone within these homes betrays that trust, everyone suffers.”

Burt’s Law v. “Ag Gag”

Though not at all controversial (the Burt’s Law bill passed both houses of the General Assembly unanimously) the new statute comes along at an interesting time in the North Carolina policymaking world as it is not the only bill to deal with the issue of whistleblowers. Even as McCrory signed Burt’s Law, his office inbox included another proposal recently approved by lawmakers that would have a distinctly different impact on the outspokenness of employees who witness wrongdoing in the workplace.

The bill is officially entitled “The Property Protection Act,” but as this author noted on The Progressive Pulse blog a couple of weeks ago, it is commonly referred to as the “Ag Gag” bill because it is widely understood to be targeted at silencing those who would record and publicize disturbing images or sounds from facilities used to raise and/or slaughter and process animals.

This is from the blog post:

“Under the bill, employers can sue any person (including employees) who gain access to ‘nonpublic areas’ of their premises and who then, without authorization, record images or sounds and then use those recordings to breach their ‘duty of loyalty to the employer.’

Defenders of the bill, which included widely respected progressives like Rep. Rick Glazier, argued forcefully that the language of the bill is drawn in a very narrow fashion so as to protect whistleblowers and others who would expose wrongdoing or illegal activity. And indeed, the proposal includes references (both direct and indirect) to numerous anti-retaliation statutes and includes none of the criminal penalties that were present in previous “ag gag” proposals.

It’s also easy to envision compelling scenarios in which employers would be rightfully aggrieved at the idea of employees secretly recording and posting to the Internet the contents of, say, staff meetings or private strategy sessions.

That said, the bill as written still raises serious and nagging questions about freedom of speech and the public’s right to know important information. For instance, it appears that under the terms of the bill, an employee who becomes aware of inhumane or unsanitary (but not necessarily illegal) food preparation practices could be sued, silenced and ordered to pay damages if she recorded a video of such practices on her phone and publicized the recording. Similarly, an office worker who, for instance, records and publicizes the fact that his boss keeps a noose in his office along with some racist posters and literature would appear to be potentially liable for damages.”

Since the bill’s passage – which came by substantial bipartisan margins in both houses, a whirlwind of negative publicity has arisen as advocates for the humane treatment of animals, workers’ rights and, more recently, seniors and others who find themselves in settings similar to those in which the Burt of Burt’s Law notoriety lived, have spoken out. If you doubt this, check out the flood of negative comments on Twitter.

The editorial page of the Charlotte Observer did a nice job of summarizing these concerns yesterday in an editorial entitled “N.C. shooting the messenger.” As the editorial noted:

“Let’s say your elderly mother lives in a nursing home. The employees’ treatment of some of the residents is atrocious: They berate them; they refuse to change soiled sheets; they handle them roughly.

An appalled worker secretly uses her smartphone to film the mistreatment and uses the video to expose the wrongdoing.

She’s a hero, right? Not to N.C. legislators. To them, she’s disloyal, and is liable to the nursing home owner for damages.

One would think that lawmakers would clamp down on illegal activity at businesses. Instead, they are clamping down on those who would expose it.

Only Gov. Pat McCrory can fix this now. House Bill 405 passed the Senate last week and now sits in McCrory’s inbox. He should veto it.”

The editorial went on to point out that:

“The intent of the bill was made clear when Sen. Josh Stein, D-Wake, offered an amendment. He would have given employees protection if the activity they recorded was illegal. Senate leaders wouldn’t even allow a vote on that.”

Looking behind the headlines

As noted in the April 24 Progressive Pulse blog post, liability for an employee under the bill would appear to hinge on his or her intent in entering the “nonpublic areas of an employer’s premises.” The bill specifies that if an employee enters for “a reason other than a bona fide intent of seeking or holding employment or doing business with the employer” he or she could be barred from sharing sounds, images and other information obtained.

Though not completely clear, this presumably means that if an employee works in the front office and enters a patient room (or animal barn) solely for the purpose of gathering information that he or she has heard about, there could be trouble. If, on the other hand, the employee already works in the room or barn and records activities there during the course of the regular day, he or she might conceivably be protected.

The problem, of course, with all this, is that defending oneself against such a lawsuit would almost assuredly be horrendously expensive and intimidating. An employee might conceivably “win” such a case but still lose his or her shirt in paying lawyers and other costs of defending the case. Moreover, as a practical matter, it’s easy to imagine how the mere threat of such a suit (particularly by some corporate giant) would be enormously intimidating. How many average employees would be willing to take the risk of testing the matter under threat of being ruined financially for life?

The bottom line

Crafting a statute that protects legitimate property rights when they are competing against the First Amendment’s free speech guarantees and the flow of information in a free society is an enormously complex and difficult proposition. Perhaps there is some reasonable point at which the two competing interests are properly balanced, but then again, perhaps such a balancing point really doesn’t exist in circumstances such as are contemplated in the “Property Protection Act.”

Unfortunately, at this point, the bill on Gov. McCrory’s desk fails to strike this balance. Let’s hope the Governor realizes just how hypocritical it would rightfully be seen if he approved the proposal right after having made such a show about the importance of employees speaking up when they witness abuse in the workplace.

About the author

Rob Schofield, Director of NC Policy Watch, has three decades of experience as a lawyer, lobbyist, writer and commentator. At Policy Watch, Rob writes and edits daily online commentaries and handles numerous public speaking and electronic media appearances. He also delivers a radio commentary that’s broadcast weekdays on WRAL-FM and WCHL and hosts News and Views, a weekly radio news magazine that airs on multiple stations across North Carolina.
rob@ncpolicywatch.com
919-861-2065