Boston Whistleblower Protection Attorney – Allison MacLellan

Whistleblowers report the  activities, policies or practices of their employers or another entity with whom her or his employer has a business relationship which violate laws, rules or regulations promulgated pursuant to law, or which the employee reasonably believes pose a risk to public health, safety or the environment.  Frequently, the employer retaliates against the employee through demotion, harassment or termination.

Whistleblowers are protected under Massachusetts General Law c. 149 s. 185, which states that an employer or public utility employer shall not take any retaliatory action against an employee because the employee does any of the following:

1. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer or public utility employer, or of another employer or public utility employer with whom the employee's employer or public utility employer has a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment;
2. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law, or activity, policy or practice which the employee reasonably believes poses a risk to public health, safety or the environment by the employer or public utility employer, or by another employer or public utility employer with whom the employee's employer or public utility employer has a business relationship; or
3. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.

Remedies can include:

1. Issuance of temporary restraining orders or preliminary or permanent injunctions to restrain continued violation of this section;
2. Reinstatement of the employee to the same position held before the retaliatory action, or to an equivalent position; 
3. Reinstatement of full fringe benefits and seniority rights to the employee; 
4. Compensation for the employee equal to  three times the lost wages, benefits and other remuneration, and interest thereon; and 
5. Payment by the employer or public utility employer of reasonable costs, and attorneys' fees.
    

Of note, the whistleblower who makes a disclosure to a public body is not protected under M.G.L. c. 149 s. 185 unless he or she first has brought the activity, policy or practice to the attention of a supervisor by written notice and has afforded the employer or public utility a reasonable opportunity to correct the activity, policy or practice.  This notice requirement has exceptions, if the employee provides information or testifies before a public body conducting an investigation, or if the employer is reasonably certain that the activity, policy or practice is known to one or more managers and the situation is emergent, or reasonably fears physical harm as a result of the disclosure provided; or makes the disclosure to a public body for the purpose of providing evidence of what the employee reasonably believes to be a crime.

The employee has two (2) years to file suit in Superior Court. If the court finds said action was without basis in law or in fact, the court may award reasonable attorneys' fees and court costs to the employer or public utility employer.

Protection for Medical Whistleblowers in Massachusetts

M.G.L. c. 149 s. 187 is a Health Care Providers whistleblower protection act and prohibits health care facilities from taking retaliatory action against a health care provider including refusing to hire, terminating a contractual agreement with or taking any retaliatory action against a health care provider because the health care provider does any of the following:

1. Discloses or threatens to disclose practices which are in violation of a law, rule or regulation promulgated pursuant to law or are violative of professional standards of practice which the health care provider reasonably believes poses a risk to public health;
2. Provides information, testifies before a public body conducting an investigation into any such violative practices;
3. Objects to or refuses to participate in any activity, policy or practice of the health care facility or of another health care facility with whom the health care provider's health care facility has a business relationship which are in violation of a law, rule or regulation promulgated pursuant to law or are violative of professional standards of practice which the health care provider reasonably believes poses a risk to public health;
4. Participates in any committee or peer review process, files a report or a complaint, or an incident report discussing allegations of unsafe, dangerous or potentially dangerous care.

Of note, the Health Care Provider who makes a disclosure to a public body will be unable to bring suit under M.G.L. c. 149 s. 187 unless he or she first has brought the activity, policy or practice to the attention of a manager of the health care provider by written notice and has afforded the health care facility a reasonable opportunity to correct the activity, policy or practice.  This notice requirement has two exceptions, if the Health Care Provider provides information or testifies before a public body conducting an investigation as set forth in section 2 above, or if the Health Care Provider is (i) is reasonably certain that the activity, policy or practice is known to one or more managers of the health care facility and the situation is emergent in nature; (ii) reasonably fears physical harm as a result of the disclosure; or (iii) makes the disclosure to a public body for the purpose of providing evidence of what the health care provider reasonably believes to be a crime.

The Health Care Provider has two (2) years to file suit. 

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