Defining “Illegal Activities” for Whistleblowers

Today, the Tennessee Court of Appeals issued a decision that addresses what are "illegal activities" as meant by the Tennessee whistleblower statute, Tenn. Code Ann. § 50-1-304. The statute defines "illegal activities" as "activities that are in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety or welfare." That leaves a lot of room for interpretation and Tennessee courts have fleshed in some of answers.

The court of appeals' decisions agree on several important points. First, does the activity, as reported violate a "regulation intended to protect the public health, safety or welfare." Second, not every regulatory violation constitutes an "illegal activity" under the statute. Employees must prove "more than that their employer violated a law or regulation. They must prove that their efforts to bring to light an illegal or unsafe practice furthered an important public policy interest, rather than simply their personal interest."

This decision goes slightly further in making explicit what it had held previously, an employee is not protected simply because the employee believes the conduct is illegal. Rather, the conduct must actually be illegal; if it not, the employee complaints are not protected.

The issue in this case was whether the employee's reports of his supervisor viewing "scantily clad women, sometimes not clothed" on the supervisor's work computer was an "illegal activity." The images themselves were not outright "illegal" (as in child pornography or something else) and the court was a complaint about seeing these kind of images at work was a report of illegal activity.

While the court held for the employer, employers should act with caution; without counsel's advice, it is easy to be wrong about what is illegal activity. It is just as easy for an employer as an employee. So, employers should not base employment decisions solely on whether the employee's assertions constitute "illegal activities." The risk is too great. For example, here the plaintiff (a male) did not assert he thought the images on the computer were sexual harassment. Without saying that the images would have been harassment (there are decisions saying these probably would not have been), had a female employee complained and then been terminated, the complaint about the images might have been protected under the Tennessee Human Rights Act or Title VII.

So while the decision helps bring clarity to a vague statute, as a practical matter, the issue is only relevant after litigation ensues.