Archie Mazmanian is the principal contributor, edited by Bob.
1. Archie’s Report.
2. Prior reports in this series.
1. Archie’s Report.
What if a MA governmental employer fails to comply with subsection (g) of the Whistleblower Statute? (The Statute is available at: http://www.mass.gov/legis/laws/149-185.htm - download and print it out for reference. Also, refer to Parts I and II of this series.)
Section 180 of Chapter 149 provides:
“Whoever violates a provision of this chapter for which no specific penalty is provided shall be punished by a fine of not more than five hundred dollars.”
While Section 185 of Chapter 149 provides for certain damages to an employee under subsection (d), there is no specific penalty prescribed for an employer’s failure to comply with the notices required by subsection (g).
Whether a MA governmental employee has standing to enforce Section 180 is not clear. However, Section 2 of Chapter 149 provides:
“The attorney general shall, except as otherwise specifically provided, enforce the provisions of this chapter, and shall have all necessary powers therefor.”
Presumably the MA Office of the Attorney General (“AG”) could seek the enforcement of such a fine from a MA governmental employer under Section 180 for failure to comply with subsection (g) of the Whistleblower Statute.
The Whistleblower Statute has been in force since early in 1994. It is not clear just how many MA government employers are in compliance with their subsection (g) requirements. Surely the AG has the authority as well as the responsibility to enforce compliance with subsection (g). Is the AG doing so?
What are the incentives for MA government employers to comply with subsection (g)? The possibility of “punishment by a fine of not more than five hundred dollars” does not seem like a realistic incentive, even assuming that the AG were to seek such fines pursuant to Section 180 of Chapter 149.
Might the public policy behind the enactment of the Whistleblower Statute serve as an incentive to comply with the requirements of subsection (g)? Or is there reason for such employers to fear the results of such compliance? MA governmental employees following this series might check with their employers to determine whether the latter are in compliance with subsection (g). Such compliance would not only afford protection to such employees with respect to their employment but would also protect the public by serving to lessen inappropriate conduct by employers that might impact the public fisc.
While the failure of a MA governmental employer to comply with subsection (g) does not deprive an employee of rights under the Whistleblower Statute, the employee may not become aware of such rights in the absence of such compliance. Thus, the employer’s failure, intentional or otherwise, to so comply may diminish the rights of an employee with respect to unlawful retaliatory action against the employee by the employer. Might this serve as a perverse incentive on the part of a MA government employer NOT to comply with subsection (g)?
[Part IV of this series will address how MA governmental employees and the public might address such non-compliance with subsection (g) of the Whistleblower Statute.]
2. Prior reports in this series.
Part 2: http://charlesriverwhitegeeseblog.blogspot.com/2009/12/whistling-in-dark-part-ii.html.
Part 1: http://charlesriverwhitegeeseblog.blogspot.com/2009/12/whistling-in-dark-part-i.html.
