1. What legal protection does Vermont provide 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
Vermont recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee in a manner that contravenes a clear and compelling 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, Vermont courts will look to statutes, constitutional provisions, and other sources (such as professional codes of ethics) to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. a criminal statute). So, for example, because a Vermont 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 Vermont 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 Vermont’s public policy. In both situations, employees are protected from retaliatory discharge.
Statutory Protections
In addition, the Vermont General Assembly has adopted narrow statutory protections for certain activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: discrimination, lie detectors, occupational safety and health, parental and family leave, smoking in the workplace, and workers’ compensation.
Whistleblowers receive limited protection under Vermont law, as there is no general whistleblower protection statute. Whistleblowers must rely on the narrow statutory protections and the common law public policy exception.
Other Protections
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 in a manner that contravenes a clear and compelling public policy. Specifically, Vermont courts have protected employees who file a workers’ compensation claim.
Unfortunately, there is a shortage of cases that have clearly established the boundaries of the public policy exception. Whistleblowers have received protection in other states under similar public policy exceptions, but because there is a shortage of cases in Vermont, the probability of success for Vermont whistleblowers is uncertain.
Statutory Protections
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for lodging a discrimination complaint or cooperating in an investigation into discriminatory practices. This protection also extends to situations where an employee is about to lodge a complaint and situations where an employer believes the employee may lodge a complaint or cooperate in an investigation. Vermont law prohibits workplace discrimination on the basis of race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth, age, and disability. Vt. Stat. Ann. tit. 21, § 495(a)(5).
Healthcare employees: An employee may not be discharged (or discriminated against) in retaliation for reporting a violation of law by their healthcare facility, for reporting improper quality of patient care, for participating in an investigation of the healthcare facility, or for refusing to participate in a violation of law or improper quality of care. Vt. Stat. Ann. tit. 21, § 507.
Lie Detectors: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, or testifying in a proceeding under the Vermont Polygraph Protection Act (PPA). The PPA prohibits most employers from administering polygraph examinations to employees. Vt. Stat. Ann. tit. 21, § 494d.
Long-Term Care Facilities: An employee may not be discharged (or discriminated against) in retaliation for making a report to the Office of the Ombudsman. Vt. Stat. Ann. tit. 33, § 7508.
Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for lodging a complaint with the Commissioner of Labor regarding payment of wages that is less than Vermont’s minimum wage. Vt. Stat. Ann. tit. 21, § 397.
Nursing Mothers: An employee may not be discharged (or discriminated against) for requesting time to express breast milk, or for requesting appropriate accommodations to do so. Vt. Stat. Ann. tit. 21, § 305.
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right under Vermont laws concerning occupational safety and health. Vt. Stat. Ann. tit. 21, § 231(a).
Parental and Family Leave: An employee may not be discharged (or discriminated against) in retaliation for lodging a complaint or cooperating in an investigation under Vermont’s Parental and Family Leave laws. Employees are also protected if their employer believes the employee may lodge a complaint or assist in an investigation under those same laws. Under Vermont’s Parental and Family Leave laws, qualified employees are entitled to take a long-term leave up to 12 weeks of unpaid leave to care for a newborn child or seriously ill family member and short-term leave up to 4 hours of unpaid leave per month for certain family obligations. Vt. Stat. Ann. tit. 21, § 473.
Smoking in the Workplace: An employee may not be discharged (or discriminated against) in retaliation for assisting in the enforcement of Vermont laws concerning smoking in the workplace. Under these laws, employers are required to establish a smoke-free workplace or restrict smoking to designated smoking areas. Vt. Stat. Ann. tit. 18, § 1427(a).
Wages: An employee may not be discharged (or discriminated against) in retaliation for filing a report with the Commissioner of Labor about wage theft or improper payment of wages. Vt. Stat. Ann. tit. 21, § 348.
Workers’ Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing a workers’ compensation claim. Also, an employer may not refuse to hire employee applicants because the applicant had previously filed a workers’ compensation claim. An employee is protected even if the workers’ compensation claim is filed out-of-state. Vt. Stat. Ann. tit. 21, § 710.
3. How do I file a whistleblower or retaliation claim in Vermont?
Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 6 years of the retaliatory action. ⚖ However, a shorter statute of limitations period of 3 years may apply in some cases ⚖, so if you believe you have a claim, you should contact a lawyer without delay.
Discrimination: An employee may file a wrongful discharge lawsuit in an appropriate court. A wrongfully discharged employee may recover compensatory and punitive damages, appropriate equitable relief (such as reinstatement), and attorney fees. If you believe you have a claim, you should contact a lawyer. Vt. Stat. Ann. tit. 21, § 495b(b).
Occupational Safety and Health: An employee may file a complaint with the Vermont Occupational Safety & Health Administration (VOSHA) (a division of the Vermont Department of Labor & Industry). The complaint must be filed within 30 days of the retaliatory action. VOSHA will investigate the claim and may pursue legal action on your behalf. If you believe you have a claim, you should file a complaint with VOSHA immediately. In addition to filing a complaint with VOSHA, an employee also has the option of filing a lawsuit in an appropriate court. An employee can thus choose to file a lawsuit, file a complaint with VOSHA, or pursue both options at the same time. ⚖ If you choose to file a lawsuit, you should contact a lawyer. VOSHA can be reached at the following address:
Vermont Department of Labor and Industry
National Life Building
Drawer 20
Montpelier, Vermont 05620-3401
Phone: (802) 828-2765
Fax: (802) 828-2195
E-mail: voshainfo@labind.state.vt.us
Parental and Family Leave: An employee may file a lawsuit in an appropriate court. If you believe you have a claim, you should contact a lawyer. Vt. Stat. Ann. tit. 21, § 474(b).
Smoking in the Workplace: An employee may file a complaint with the Vermont Occupational Safety & Health Administration (VOSHA). The complaint must be filed within 30 days of the retaliatory action. VOSHA will investigate the claim and may pursue legal action on your behalf. If you believe you have a claim, you should contact VOSHA immediately.