Tuesday, August 14, 2012

Law Does Not Protect Whistleblower Who Spoke to Council About Alleged Hotel Blacklisting Practices

Last night, the issue of whether to override the Mayor's veto of the blacklisting measure came before the council.  During the discussion, a Democrat council member raised the issue hotel worker Elvia Bahena being fired by contractor United Service shortly after speaking to the Council.  She claims it was in retaliation for speaking to the Council.  United Service told the Star in an article dated July 26, 2012, she wasn't fired, but rather just had not received another assignment yet.  The Hiatt, where she worked, told a different story to WISH-TV, saying that she was fired for missing too many shifts, an accusation that Bahena vehemently disputes.

Former Hiatt Worker Elvia Bahena
During the discussion, Republican Council member Bob Lutz who is both an attorney and former small claims court judge, said if Bahena was really fired for speaking to the council, she can file a wrongful termination lawsuit.

What Councilor Lutz didn't say, and perhaps he didn't know, is that she would have no chance of winning such a lawsuit.  Indiana is an at-will state. In order for her employment to be protected there would have to be a specific law shielding her from retaliation for testifying to the Council.   With very few exceptions, there is no law protecting the right of private employees to speak publicly against their employers, even when it is about a matter of a public concern.  Her  employer, United Service, can fire her for speaking to the Council.  And since Hiatt is not technically her employer, she may not be able to maintain an action against the hotel at all.

Whether Bahena qualifies for unemployment is an entirely separate matter.

Given Indiana's home rule, it is possible the Council could pass an ordinance prohibiting employers from retaliating against employees who decide to testify before the council.  That might actually work to give the employee some protection and might form the basis of a wrongful termination case should that employee later be fired for testifying to the council.  But as far as Bahena goes, she is almost certainly out of luck if she follows Lutz's suggestion and files a lawsuit.

1 comment:

Nicolas Martin said...

Whistleblower laws should only cover employees of government. Freedom to fire is a necessary corollary of freedom to quit.