1. What legal protection does Oklahoma provide private sector 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
Oklahoma recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that is contrary to a clear mandate of public policy. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the discharge violates public policy.
To determine what constitutes public policy, Oklahoma courts will look to appropriate laws to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Oklahoma 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 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 Oklahoma's public policy. In both situations, employees are protected from retaliatory discharge. Whistleblowers receive some protection under the public policy exception.
Statutory Protections
In addition, the Legislature of the State of Oklahoma has adopted statutory protections for certain activities. Oklahoma has adopted a general anti-retaliation statute that protects activities such as reporting violations of certain wage and safety laws. Also, several other Oklahoma statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: abuse or neglect of children, discrimination, occupational health and safety, persons with developmental or physical disabilities, and workers' compensation.
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 for a reason that is contrary to the public policy of the state of Oklahoma. Specifically, employees are protected from retaliation for the following protected activities:
- Reporting an employer's illegal conduct or unsafe activities
- Filing lawsuit against employer's customer for work-related injury
- Filing a workers' compensation claim
- Refusing to violate provisions of the Public Health Code
- Refusing to operate a vehicle in violation of state safety regulations
- Giving testimony before a committee
Statutory Protections
General Whistleblower Protection:Oklahoma has passed a Whistleblower Protection Act. Under the WPA an employee may not be retaliated against for filing a claim with the Oklahoma Merit Protection Board if the employee believes there is a violation of law by their agency. There is no reporting requirement to a superior. Okla. Stat. tit. 74 § 840-2.5.
General Protection of Labor Wage and Hour Violations Safety Violations: An employee may not be discharged (or discriminated against) in retaliation for the following protected activities:
- Filing a complaint concerning the enforcement of certain labor laws. The complaint must be filed with the employer or the Commissioner of Labor. The applicable labor laws are:
- Child Labor Laws
- Inspection and Regulation of Factories
- Track Motor Cars
- Physical Examinations
- Contracts Involving State Funds
- Minimum Wages
- Discriminatory Wages
- Instituting a proceeding or investigation concerning the above labor laws.
- Testifying in an investigation or proceeding concerning the enforcement of any labor law.
An employer who violates this provision is guilty of a misdemeanor. Okla. Stat. tit. 40, § 199.
Abuse or Neglect of Children: An employee may not be discharged (or discriminated against) in retaliation for reporting, in good faith, suspected abuse or neglect of children. Nor may an employee be discharged (or discriminated against) in retaliation for testifying in a proceeding to enforce child abuse laws. Okla. Stat. tit. 10, § 7103.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing concerning unlawful discrimination. Technically, the statute prohibits only conspiracies by two or more persons to retaliate against an employee for this reason. Under Oklahoma's Anti-Discrimination Act, an employer with fifteen or more employees may not discriminate on the basis of race, color, religion, sex, national origin, age, or handicap. Okla. Stat. tit. 25, § 1601(1).
Long-Term Care Ombudsman: An employee may not be retaliated against for filing a claim with the Ombudsman. Okla. Stat. tit. 63 § 1-2215.
Occupational Health and Safety: 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 concerning occupational health and safety standards. Okla. Stat. tit. 40, § 403(B).
Persons with Developmental or Physical Disabilities: An employee of a group home for persons with developmental or physical disabilities may not be discharged (or otherwise retaliated against) for filing a complaint, instituting an action, or testifying in an action concerning injuries to the resident. Okla. Stat. tit. 10, § 1430.8(F).
Workers' Compensation: An employee may not be discharged in retaliation for performing, in good faith, the following protected activities:
- Filing a workers' compensation claim
- Retaining a lawyer for representation concerning a workers' compensation claim
- Instituting a proceeding concerning workers' compensation
- Testifying in a proceeding concerning workers' compensation
- Electing to participate or not to participate in a certified workplace medical plan
3. How do I file a whistleblower or retaliation claim in Oklahoma?
Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within two years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer.
Discrimination: An employee may file a complaint with the Oklahoma Human Rights Commission (HRC). The complaint must be filed within 180 days of the retaliatory action. The HRC will investigate and may pursue legal action. If you believe you have a claim, you should contact the HRC immediately at:
Oklahoma Human Rights Commission
Jim Thorpe Building
2101 N. Lincoln Boulevard, Room 480
Oklahoma City, OK 73105-4904
Phone: (405) 521-2360
Alt Phone: (888) 456-2558
Fax: (405) 522-3635
Email: hrc@ohrc.state.ok.us
Hours of Operation: 8:00 AM - 5:00 PM
Workers' Compensation: An employee may file a lawsuit in an appropriate court. An employee may be entitled to reinstatement and compensatory damages. Punitive damages may be assessed against the employer. If you believe you have a claim, you should contact a lawyer.