The “Duty Speech” Doctrine and Whistleblowers
Workers who blow the whistle on illegal actions generally are—and should be—protected from retaliation by their employer and others. Protection from retaliatory measures is a fair system because it encourages whistleblowers to step forward.
However, one group of employees deserves special mention. Those whose job it is to identify and investigate unlawful actions, such as internal compliance or human resources workers, can possibly be excluded from whistleblower protections. However, the trend is changing for the better.
What is the Duty Speech Doctrine?
Court decisions have defined what is known as the “duty speech” doctrine. Also sometimes called the “step outside” doctrine, the duty speech doctrine asserts that a worker who performs only their normal due diligence in an investigatory role is not engaging in protected conduct, as defined by anti-retaliation statutes. For an employee’s conduct to become protected, they must demonstrate that they “stepped outside” their usual job duties by acting in an unusual or uncharacteristic manner when they countered illegal actions or told others about the illegal actions. Stepping outside the usual work role serves as notice to the employer that the employee’s actions are protected conduct.
Recent Court Decisions
With the “manager rule,” which is extremely similar to the duty speech doctrine, a manager who disagrees with company policy during the performance of their duties is not considered to be engaging in protected conduct. The manager rule has been used to provide an exception when a Title VII whistleblower steps forward. (Title VII of 1964’s Civil Rights Act prohibits unlawful discrimination and also prohibits retaliation against those who oppose or blow the whistle on such illegal activity.)
In a 2015 Title VII case, DeMasters v. Carilion Clinic, the Fourth Circuit Court of Appeals rejected the manager rule, reversing a lower court’s decision that had resulted in the dismissal of a Title VII whistleblower retaliation claim. The Fourth Circuit governs both South Carolina and North Carolina, as well as Maryland, Virginia and West Virginia.
When we turn to a 2014 Sarbanes-Oxley (SOX) whistleblower retaliation case, Yang v. Navigators Grp., Inc., the Second Circuit Court of Appeals (New York) rejected the duty speech doctrine, referring to a 2012 decision by a district court stating that, even if the whistleblower’s job description made their activity mandatory, that fact is irrelevant.
In a 2017 case, the duty speech doctrine was rejected for a False Claims Act whistleblower who experienced retaliation. The Southern District of New York denied the motion to dismiss Malanga v. NYU Lagone Med. Cir. on such grounds. The judge’s decision implied that the heightened standard imposed by the duty speech doctrine as concerns FCA whistleblower retaliation cases was eliminated by the FCA’s 2009 amendments to its anti-retaliation provisions.
Working with whistleblowers tirelessly to shed light on fraudulent practices.
If you think you have the facts needed to bring a whistleblower case, the experienced whistleblower attorneys at the Louthian Law Firm can review your case and help you file the appropriate disclosure statement. Under some circumstances, the government will intervene, or join in your lawsuit.
Your chances of succeeding are greater if your whistleblower claim is substantive, clear, and to the point. Because of this, meeting with a qualified whistleblower attorney can increase your chances of winning. The Louthian Law Firm can help you form your claim so that the government will be more inclined to intervene in your case; government intervention can sometimes increase the chances of recovering reward money. Even if the government decides not to intervene, it could still be a good idea to pursue your case without government involvement. Our strong support system can assist you through every step of the process.
For a free, confidential evaluation of your case, call the Louthian Law Firm today at 1-803-454-1200 or, if you prefer, you can fill out our online contact form.