Survey of State Law Claims for Safety and Health Whistleblowers

This chart complements the Tate & Renner article on Health and Safety Whistleblower Rights. A companion chart lists federal laws that might help whistleblowers. This chart is meant to call attention to the types of claims that employees should investigate in their states. It is also meant to urge them to consult a lawyer in their states to assess each claim before the time limits expire. "SOL" means "statute of limitations." It is the time limit to file a legal action. This chart is not updated on any regular basis, and it is not meant to establish an attorney-client relationship. Only by retaining an attorney in the appropriate state can employees get answers they can legally rely on. So, do not rely upon this table for legal advice. This summary table is provided for information only and to assist attorneys in legal research. It is not warranted to be accurate in any respect. This table cannot replace the need for independent research or legal advice regarding where, when, and how your claim can be brought. Further, the statutes of limitations herein may not apply to your case or situation, may no longer be applicable, and, like any employment-related law, are always subject to change at any time, by act of Congress, agency practice, the courts, or changing facts in the case itself.

Alabama. Maybe, if discharge is "outrageous conduct." Ala. Code (1975) 25-5-11.1; Gold Kist v. Griffin, 657 So.2d 826, 829 (1994); but see Grant v. Butler, 590 So. 2d 254 (Ala. 1991) (OSHA remedy adequate). SOL 2 years.

Alaska. Yes. Alaska Whistleblower Act §39.90.100-150 (2006). Knight v. American Guard and Alert, Inc., 714 P.2d 788, 791-92 (1986). SOL 2 years, AS 09.10.070.

Arizona. Yes. ARS 23-1501. SOL 10 days for state employees; unknown for other employees. Also, the Arizona Division of Occupational Health and Safety ("ADOSH") can receive complaints of retaliation in violation of ARS 23-425(A). The time limit to file this type of complaint is thirty (30) days. See also, Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025, 1035 (Ariz. 1985) (tort claim allowed for refusal to engage in illegality).

Arkansas. Maybe. Arkansas Whistle-Blower Act § 21-1- 601 (for public employees). MBM Co. v. Counce, 596 SW2d 681 (1980) (contract claim for violation of public policy); Webb v. HCA Health Serv., 780 S.W.2d 571 (Ark. 1989) (tort claim for refusal to falsify medical records used in billing government); but see Newton v. Brown & Root, 658 SW2d 370 (1983) (claim disallowed when plaintiff violated safety rule because employer did not provide safe working conditions). SOL 180 days for public employees.

California. Yes. Jenkins v. Family Health Program, 214 Cal. App. 3d 440, 262 Cal. Rptr. 798 (1989); Hentzel v. Singer Co., 138 Cal. App. 3d 290, 188 Cal. Rptr. 159 (1982). SOL 1 year. See also, Health and Safety Code, Section 1278.5 (prohibiting retaliation by health care providers).

Colorado. Maybe. Martin Marietta Corp v. Lorenz, 823 P.2d 100, 108 (1992) (public policy tort allowed for refusing to engage in illegality); but see Corbin v. Sinclair Marketing, 684 P.2d 265 (Colo. App. 1984) (disallowing claim when statute provides another remedy); Miles v. Martin Marietta Corp., 861 F. Supp. 73 (D. Colo. 1994) (OSHA remedy adequate). SOL 2 years.

Connecticut. Yes. Conn. General Statutes 31-51m (1982). 90 day SOL. Faulkner v. United Technologies Corp., 240 Conn. 576, 693 A.2d 293 (Conn. 1997) (claim allowed for refusing to defraud U.S. Army by using defective helicopters parts); but see Burnham v. Karl & Gelb, P.C., 1997 WL 133399 *5-6 (Conn. Super. Ct. 1997).

Delaware. Yes. 29 Del. § 5115 (for public employees); Delaware Whistleblowers’ Protection Act, 19 Del. § 1701. SOL 90 days for public employees; 3 years for general statute.

District of Columbia. Yes. Adams v. George W. Cochran & Co., 597 A.2d 28 (1991); Carl v. Children's Hosp., 702 A.2d 159 (D.C. 1997); Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999). SOL 3 years, per D.C. Code Section 12-301(8).

Florida. Yes. Fla. Stat. 448.101-105 (1991); 112.3187 (public employees); 39.203 (child abuse reports); 415.1036 (nursing home reports). SOL 4 years for tort claims, unknown for public employee claims.

Georgia. O.C.G.A. § 45-1-4 (public employees, SOL 1 year) and O.C.G.A. § 9-11-11.1 (free speech and right of petition). No private sector tort claim. Taylor v. Foremost-McKesson, Inc., 656 F.2d 1029 (1981).

Hawaii. Yes. HRS 378-63(9). 90 day SOL. Norris v. Hawaiian Airlines, Inc., 842 P.2d 634 (Haw. 1992) (tort claim allowed for refusing to falsify airline maintenance records in violation of FAA regulations), aff'd sub nom. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994).

Idaho. Yes. Idaho Protection of Public Employees1 Act, Idaho Code § 6-2101, and sequence; Jackson v. Minidoka, 563 P.2d 54 (1977). SOL 180 days.

Illinois. Yes. Fredrick v. Simmons Airlines, Inc., 144 F.3d 500, 504-05 (7th Cir. 1998). SOL 5 years, per appellate decision. Palmateer v. International Harvester Company, 85 Ill.2d 124, 421 N.E.2d 876 (1981) (reporting to and cooperating with law enforcement). Illinois Whistleblower Act, 740 ILCS 174/1, Section 20.

Indiana. Yes. Frampton v. Central Indiana Gas Co., 297 N.E.2d 425, 428 (1973); McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390 (Ind. 1988) (refusing to drive truck over legal weight limit). SOL 2 years, but consider IOSHA's reputation for administrative enforcement.

Iowa. Yes. Financial and Other Provisions for Public Officers and Employees, § 70A.28 (for public employees). Fogel v. Trustees, 446 N.W.2d 451, 455 (1989); Borschel v. City of Perry, 512 N.W.2d 565, 567 (Iowa 1994) (referring to refusal “to commit an unlawful act” as one basis for wrongful-discharge claim); Fitzgerald v. Salsbury Chem., Inc., 613 N.W.2d 275, 280 (Iowa 2000) (refusal to commit perjury protected). SOL 5 years, Iowa Code, Section 614.1.

Kansas. Yes. Kansas Whistleblower Act, K.S.A. § 75-2973 (for public employees). Flenker v. Willamette Industries, Inc., 967 P.2d 295, 298 (1998). SOL 90 days for public employees.

Kentucky. Yes. KRS § 61.101, and sequence (for state employees). KRS § 216B.165 for health care whistleblowers. Public policy claim recognized in Firestone Textile co. v. Meadows, 666 SW2d 730 (1984); Follett v. Gateway Reg. Health System, Inc., 229 S.W.3d 925 (Ky. App. 2007); but not allowed when the statute provides its own remedy. Grzyb v. Evans, 700 SW2d 399 (1985). SOL 90 days for state employees using the statutory claim; SOL 5 years for others.

Louisiana. Yes for environmental complaints. LSA RS 23:967. However, for non-environmental complaints, employee must prove the underlying violation or face an employer claim for attorney fees. LSA RS 967(D). SOL 1 year.

Maine. Yes. 26 MRSA 831-840. SOL 6 months for complaint to Maine Human Rights Commission; 2 years for court action (which has fewer remedies).

Maryland. Maybe. Maryland Whistleblower Law in the Executive Branch of State Government, § 5-305 (for state employees). Public policy tort is recognized. Adler v. American Standard Corp., 538 F.Supp. 572 (D.Md 1982); Kessler v. Equity Management, Inc., 82 Md.App. 577, 572 A.2d 1144 (1990) (refusal to commit trespass and invasion of privacy). Exception, though, if the statute provides its own remedy. Gaskins v. Marshall Craft Associates, Inc., 678 A.2d 615, 620 (Md. App. 1996). SOL 6 months for state employees using statutory claim; SOL 3 years for private tort claims. See also, MD Code, Criminal Law, 9-303 (prohibiting retaliation against those who report crimes); Maryland's Health Care Worker Whistleblower Protection Act, MD Code, Health Occupations Article, Sections 1-501 through 1-505 (SOL 1 year); MD Code, Labor & Employment Law, Section 5-604 (occupational health and safety, and misuse of healthcare information, SOL 30 days); MD Code, Labor & Employment Law, Section 3-308 (protection for making wage claims); MD Code, Labor & Employment Law, Section 9-1105 (workers compensation claims); MD Code, State Finance and Procurement, Section 11-303 (employees of state contractors); .

Massachusetts. Yes. DeRose v. Putnam Management Co., Inc., 496 N.E.2d 428 (1986) (refusing to testify falsely at criminal trial). SOL 3 years. Statutory claims for public employees, medical whistleblowers, and nursing home professionals have an SOL of 2 years. M.G.L. c. 149 Sec 185(d). Employees can pursue the common law claim, or the statutory claim, but not both. M.G.L. c. 149 Sec 185(f).

Michigan. Yes. MCLA c.149, Sec. 185. SOL 90 days. Trombetta v. Detroit, T. & I. R.R., 265 N.W.2d 385 (Mich. Ct. App. 1978) (tort claim allowed for refusing to falsify pollution control records in violation of state law).

Minnesota. Yes. MSA 181.932. SOL 2 years.

Mississippi. Yes. Protection of Public Employee from Reprisal for Giving Information to Investigative Body or Agency, Miss. Code Ann. § 25-9-171 (for state employees). McArn v. Allied Bruce-Terminix Co., 626 So.2d 603, 607 (1993). SOL unknown.

Missouri. Yes. Public Officers and Employees, Miscellaneous Provisions, § 105.055 R.S. Mo. Smith v. Arthur Baue Funeral Home, 370 S.W.2d 249, 254 (1963); Fleshner v. Pepose Vision Institute, 304 S.W.3d 81 (Mo. 2010). Union members must exhaust grievance and arbitration. SOL 30 days for administrative action by state employees, 90 days for court action by state employees, 3 or 5 years for tort claims. Claims may be preempted by available statutory remedies. See Trapp v. Von Hoffman Press, Inc., 2002 WL 1969650 (June 12, 2002); Osborn v. Professional Service Industries, Inc., 872 F.Supp. 679 (W.D.M. 1994)

Montana. Yes. Wrongful Discharge from Employment Act (WDEA), RCM 39-905, and sequence. Employees must exhaust employer grievance process. Employers can require binding arbitration. 1 year SOL.

Nebraska. Yes. Public policy exception recognized. Schriner v. Meginnis Ford Co., 421 N.W.2d 755 (1988). State employees are covered by the State Government Effectiveness Act- R.R.S. Neb. § 81-2701. SOL 4 years.

Nevada. Yes. Hansen v. Harrah's, 675 P.2d 394 (1994). SOL 2 years, Ch. 11.190.

New Hampshire. Yes. Whistleblowers’ Protection Act, NHRSA 275-E (1987). SOL is 3 years. Employees must first report violation to employer. The whistleblowers’ statute provides that an employee who alleges a violation of rights must make a reasonable effort to maintain or restore such rights through any grievance procedure or similar process available at the employee’s place of employment. The employee may then obtain a hearing with the Commissioner of Labor or a designee appointed by the Commissioner. The time for filing a grievance or similar action under an agency grievance procedure or similar process will be found in such procedure or process. Wrongfully discharged employees also have a tort claim. Porter v. City of Manchester, 849 A.2d 103, 113 (N.H. 2004). Government employees are protected by NHRSA 98-E when they experess opinions about any government entity or policy. SOL unknown.

New Jersey. Yes. Conscientious Employee Protection Act (CEPA), NJSA 34:19, 1 year SOL; Cerrachio v. Alden Leeds, Inc., 223 N.J. Super. 435, 538 A. 2d 1292 (1988); and Lepore v. National Tool and Mfg. Co., 224 N.J. Super. 463, 540 A. 2d 1296 (1988); Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 961 A.2d 1167 (2008).

New Mexico. Yes. Weidler v. Big J Enterprises, 953 P.2d 1089 (NM App. 1997) (no OSHA preclusion). Governmental Conduct Act, N.M. Stat. Ann. § 10-16-1, and sequence (2 year SOL); Occupation Health and Safety, N.M. Stat. Ann. § 50-9-25 (private sector). SOL 30 days for administrative complaint; 3 years for tort claim.

New York. In part. Whistleblower Statute is limited to cases where actual public health or safety violation shown. Section 740(1)(e). Violation must ordinarily be reported to supervisor. 1 year SOL. A separate health care whistleblower law protects reporting violations based on a good faith belief, and allows a 2 year SOL. Section 741.

North Carolina. Yes. Retaliatory Employment Discrimination Act (REDA), N.C.G.S. § 95-240, and sequence. SOL 180 days. Public policy tort claim also available: Sides v. Duke Hosp., 328 S.E.2d 818 (1985); Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 693-694, 575 S.E.2d 46, 51-52 (2003). SOL 3 years.

North Dakota. In part. NDCC 34-01-20. SOL 90 days. Backpay limited to two years.

Ohio. Yes. Kulch v. Structural Fibers, Inc., 78 Ohio St. 3d 134, 677 N.E. 2d 308, 1997-Ohio-219; Sabo v. Schott, 1994 Ohio 249, 70 Ohio St. 3d. 527, 639 N.E.2d 783 (refusal to commit perjury). SOL 30 days for public employees to file administrative appeal with State Personnel Board of Review (R.C. 124.341(D)); 4 years for tort claims (R.C. 2305.09(D)); perhaps as long as 6 years for nursing home employee claims (R.C. 3721.24).

Oklahoma. Yes. Burk v. K-Mart Corp., 770 P.2d 24 (1989); Todd v. Frank's Tong Service, Inc., 1989 OK 121, ¶ 12, 784 P.2d 47 (refusing to drive truck with defective brakes, headlights, and turn signals, in violation of state law). Oklahoma Whistleblower Act, 74 Okl. St. § 840-2.5; Oklahoma Personnel Act, 74 Okl. St.§ 8401.2 (for state employees). SOL for state employee complaints to Oklahoma Merit Protection Commission is 60 days; SOL for tort claims against municipalities, 1 year. SOL for private personal injury tort claims is 2 years.

Oregon. ORS 659a 199 protects employees who complain about violation of state or federal law, regulation or rule. Also ORS 659.230 protects whistleblowers in the public sector. General public policy claim recognized. Delaney v. Taco Time Int'l, Inc., 297 Or. 10, 681 P.2d 114 (1984) (refusal to sign a false and defamatory statement); Anderson v. Evergreen International Airlines, Inc., 131 Or. App. 726, 886 P.2d 1068 (1994), rev. denied, 320 Or. 749 (1995) (refusing to use defective parts in defendant's aircraft, and refusing to cover up safety violations); Babick v. Oregon Arena Corp., 333 Or. 401, 407, 40 P.3d 1059 (2002). But exception applies if the law provides another adequate remedy. Walsh v. Consolidated Freightways, 278 Or. 347, 563 P.2d 1205 (1977) (OSHA remedy adequate).

Pennsylvania. Maybe. Public policy tort recognized where employee has duty to report or shows actual violation. Geary v. U.S. Steel Corp., 319 A.2d 174, 180 (1974); Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699 (3d Cir. 1988) (applying Pennsylvania law) (discharging bartender for refusing to serve visibly intoxicated patron, in violation of state liquor code); Strange v. Nationwide Mutual Ins. Co., 867 F. Supp. 1209, 1218-19 (E.D. Pa. 1994) (applying Pennsylvania law and protecting a refusal to engage in illegal “redlining”); Dugan v. Bell Telephone of Pennsylvania, 876 F. Supp. 713, 725-26 (W.D. Penn. 1994) (applying Pennsylvania law; protecting a refusal to participate in destruction of records subpoenaed by state legislature). Applied to reporting nuclear safety issues. Field v. Phil. Elec. Co., 565 A.2d 1170 (1989). Whistleblower Law, 433 P.S. § 1421 (for public employees). SOL 180 days for public employees; SOL unknown for private sector.

Rhode Island. Yes. RI Gen. Law 28-50-1, and sequence. 3-year SOL.

South Carolina. Yes. General public policy tort recognized at Ludwick v. Minute of Carolina, Inc., 337 S.E.2d at 215 (1985). SOL 3 years.

South Dakota. Yes. Niesent v. Homestake Mining Co., 505 N.W.2d 781 (contract claim); Bass v. Happy Rest, Inc., 507 N.W. 317 (1993) (tort claim may be recognized). State employee grievance procedure is at S.D. Codified Laws § 3-6A-52. SOL unknown.

Tennessee. Yes. Tenn. Code 50-1-304. SOL 1 year. In 2014, the state legislature nullified the tort claim previously recognized in Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822 (Tenn. 1994) (refusing to violate laws requiring trucks be inspected for safety violations before driving); and Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 437 (Tenn. 2011).

Texas. Only for refusing to perform illegal act. Winters v. Houston Chronicle Publishing Co., 795 S.W. 2d 723 (1990); Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985); Nguyen v. Technical and Scientific Application, Inc., 981 S.W.2d 900 (Tex. Ct. App. 1998) (refusing to violate federal criminal copyright laws). SOL 2 years.

Utah. In part. General public policy claim recognized in Hodges v. Gibson Prods. Co., 881 P.2d 151, 166 (1991), applies only for retaliation against complaints to government agencies; no protection for in-house complaints. See also, Peterson v. Browning, 832 P.2d 1280 (Utah 1992) (refusing to falsify tax and customs documents). SOL 4 years.

Vermont. Yes. Payne v. Rozendall, 520 A.2d 586, 588 (1986). SOL unknown.

Virginia. Yes. Va. Code Ann. § 40.1-51.2.1 (for workplace safety and health complaints). SOL 60 days to file administrative complaint with Virginia Commission of Labor and Industry. Va. Code Ann. § 65.2-308 (for workers comp claims). Va. Code Ann. § 54.1-515 (concerning asbestos, lead, and home inspection contractors). General tort statute of limitations is 2 years. A civil action for fraud against the state may not be brought (i) more than 6 years after the date on which the violation is committed, or (ii) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the Commonwealth charged with responsibility to act, but in that event no more than 10 years after the date on which the violation has occurred. Virginia Fraud against Taxpayers Act, Va. Code Ann. § 8.01-216.1.

Washington. Yes, for wrongful discharge only. Warnek v. ABB, 972 P.2d 453, 458 (1999); Hubbard v. Spokane County, 146 Wn. 2d 699, 707, 50 P.3d 602, 611 (2002) (en banc) (director of planning department fired for seeking assistance of county prosecutor to prevent issuance of permit to build new hotel in violation of zoning code and airport master plan). Rev Code Wash. § 42.40.010 et. seq. and § 9.60.210 and 250. SOL 60 days to file administrative complaint with Human Right Commission; 3 years for law suit.

West Virginia. Maybe. General public policy exception to at will employment is reviewed on a case-by-case basis. Tiernan v. Charleston Area Medical Center, 506 S.E.2d 578, 585-86 (1998); Collins v. Elkay Mining Co., 371 S.E.2d 46 (W. Va. 1988) (refusing to falsify mine safety reports and refusing to violate mine safety laws). SOL 2 years.

Wisconsin. Maybe. Narrow exception to at-will employment recognized, but employees must exhaust administrative remedies. Koehn v. Pabst Brewing Co., 763 F.2d 865 (7th Cir. 1985); Kempfer v. Automated Finishing, Inc., 564 N.W.2d 692 (Wis. 1997) (refusing to drive delivery truck without proper licensing). SOL 6 years.

Wyoming. Maybe. Public policy tort recognized, but not if employee is protected by an independent scheme. Hermeck v. UPS, 938 P.2d 863, 866 (1997). State Government Fraud Reduction Act, Wyo. Stat. § 9-11-101, covers state employees. State employees must exhaust administrative remedies, and then bring court action within 90 days of final administrative decision. SOL for private sector employees is 4 years.

If you know of any changes to the law not shown on this chart, let us know.
States for which more work is needed, typically finding the SOL: AZ, MS, MO, NM, PA, SD, VT

What would happen if you decided to file a state law tort claim, and the court eventually decides that the state claim is preempted by the federal administrative procedure? By the time the court makes this decision, the time limit for a federal administrative complaint (30, 90 or 180 days, depending on the law) would be expired. One court has held that if the state law claim was filed in state court within the time to file the federal administrative complaint, then the complainant can file the Department of Labor complaint after the state court action is dismissed. Turgeau v. Administrative Review Board, 446 F.3d 1052 (10th Cir. 2006). Turgeau, however, had to wait years through repeated Department of Labor dismissals to get this decision. Obviously, it would be best to have the advice of an experienced attorney at the beginning of this process.

When you shop around for an attorney, look for attorneys who have experience in employment matters, such as the members of the National Employment Lawyers Association (NELA).

The Truckers Justice Center handles cases for truckers nationwide. It may be contacted at: 900 West 128th Street, Suite 101, Burnsville, MN 55337, 651-454-5800, Fax 775.402.7561, http://www.truckersjustice.com/Trucking.shtml

Public Employees for Environmental Responsibility (PEER) conducted a state-by-state survey of laws protecting public employees. Its survey provided much of the useful information on this page.
2000 P Street NW, Suite 240
Washington, DC 20036
(202) 265-7337
Fax: (202) 265-4192
email: info@peer.org
http://www.peer.org/state/index.php

More information?

The OSHA Act is available at:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=2743
Section 11(c) is at the end of this page:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=3365
http://www.whistleblowers.org/html/nwc_publications.html

Researchers can access OALJ decisions in an excellent database at http://www.oalj.dol.gov/.

Other helpful resources include

http://www.masscosh.org/osha11ccomplaints.htm
http://www.nycosh.org/health_safety_rights/eleven-c.html
http://www.nycosh.org/where_to_get_help/link-resources.html#anchor565960

We welcome your comments.