Q. When I moved here in February, I was immediately hired at a popular local restaurant. On my first day and since, I've noticed health code and safety violations.
I asked the manager about these and he shut me down, telling me it wasn't my business. I kept silent until I realized I was the only server with enough experience to realize the consequences of these violations and that I wouldn't want any of my friends to eat here. So I again spoke to the manager in private, out of concern for the restaurant's patrons.
The result: I was fired. When I asked why, I was told I wasn't a good fit.
Of course I'll go to the health department but do I have any recourse to get my job back or to get severance pay? There's no employee handbook and I know Alaska is an employment-at-will state, but can my manager just fire me for voicing honest concerns? Am I whistle-blower?
A. According to attorney Chuck Dunnagan, you may have little recourse. "The idea of a restaurant selling unsafe food is outrageous but since you privately voiced your concerns, you probably have no witnesses or documents to back up your view that your manager fired you for voicing safety violations."
"In my experience as a labor attorney," Dunnagan said, "the restaurant's managers will likely claim poor performance or failure to get along as the reasons for your termination. When they do, how can you prove your claims?"
Are you a whistle-blower? "Not under Alaska law," Dunnagan said. "Alaska has no general statute that provides protection for whistle-blowers, only statutes that apply to specific groups such as federal employees, state employees, nurses, etc. Also, protection is usually limited even under those statues. For example, under Alaska's public employee Whistle-blower Act, a protected person is one who reports or is about to report a matter of public concern to a 'public body' or who participates in a hearing or investigation about a matter of public concern."
According to Dunnagan, "Even if you were covered by that statute you wouldn't qualify for protection because you weren't threatening to report the violations. Talking to your manager about safety violations is not a protected activity.
"Even if you threatened to report safety violations, that still wouldn't protect you unless you can prove your protected activity was a substantial or motivating factor in your termination. For example, if your manager fired you for coming to work intoxicated, you don't have whistle blower protection. Employers in whistle blower cases often assert other reasons for the termination and show documentation to back this up."
Next, does your firing violate Alaska's implied covenant of good faith and fair dealing or an Alaska public policy? Dunnagan notes, "In Alaska, the claim that you were fired for pointing out safety violations is probably enough to get to a jury but that is a lengthy, risky and expensive process. One problem will be that it's not clear that public policy requires a busy employer to stop everything and listen to a new employee's opinions about safety issues.
"You were told to mind your own business. Your conduct, if you were a public employee, would not be whistle blowing. Whether you could get this case to a jury may depend on how serious the safety issue was. However, if this case went to a jury and you could prove that you were fired for pointing out serious safety violations, the outcome would likely be in your favor. But the unfortunate reality is that without documentation of your claims and serious safety violations by the restaurant, few attorneys would take this case."
Further, Dunnagan said, you don't have a claim under the National Labor Relations Act because you made your comments "privately to management and not as part of any concerted activity with (your) co-employees."
Finally, however, your manager hasn't written the end of this story. He may greatly regret firing you when you visit the health department and share your concerns. You may also turn the tables on him by seeking out the restaurant's owner, who might view this situation differently. If not, you care about the right thing -- your customers. You have one truly solid recourse -- find a better job working for a restaurant that does right by its customers and staff.
Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Co., Inc. Send your questions to her at lynne@thegrowthcompany.com. You can follow her on Twitter @lynnecurry10 or through www.workplacecoachblog.com.
Lynne Curry
Management