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Birmingham Bar Association Summer 2016

Whistleblower Rights Russ Parker Does Alabama Law Protect Workers Who Report In Alabama, some workers are required under the law to blow the whistle when they witness certain kinds of abuse and neglect. Under Section 26-14-3 of the Alabama Code, certain categories of workers (including teachers and daycare workers) are required to report child abuse or neglect to proper authorities. Alabama law provides that an employer who fi res or otherwise penalizes a child abuse whistleblower is guilty of a Class C misdemeanor but provides no right to sue to a worker who reports child abuse or neglect and is retaliated against for doing so. Th e maximum fi ne for fi ring a whistleblower is $500. Code of Ala. § 13A-5-12. None of the $500 is payable to the employee who suff ers the retaliation. Th e only incentive for child abuse whistleblowers is of the negative variety: workers required under the statute to report child abuse or neglect face penalties of up to six months in prison as well as fi nes up to $500 for Child Abuse or ? Nursing Home Abuse failing to make required reports of abuse or neglect. Th e Alabama Code also requires physicians, practitioners of the healing arts, and caregivers to report nursing home abuse and neglect to appropriate authorities. Code of Ala. § 38-9-8. Persons required to report such abuse or neglect who fail to do so face up to six months imprisonment and fi nes up to $500. Code of Ala. § 38-9-10. Unlike the statute dealing with report of child abuse whistleblowing, there is no statutory provision prohibiting retaliation by an employer against a worker who reports nursing home abuse. What job protection do these mandatory whistleblowers have? It is clear that Alabama statutes pertaining to child abuse and nursing home abuse whistleblowing do not explicitly provide for causes of actions for workers who face retaliation for engaging in whistleblowing. Is such a cause of action implicit in either of the statutes? Alabama courts can recognize an implied right of action under an Alabama statute. Blockbuster, Inc. v. White, 819 So. 2d 43, 44 (Ala. 2001). For a court to fi nd an implied right of action, the “plaintiff must show clear evidence of a legislative intent to impose civil liability for a violation of the statute.” Id. at 44. With regard to the child abuse statute, the Alabama Supreme Court has been clear that it “does not create a private cause of action in favor of individuals.” C.B. v. Bobo, 659 So. 2d 98, 102 (Ala. 1995). In Bobo, the Court dismissed a plaintiff ’s claim seeking damages against defendants for retention and supervision of an employee alleged to have a propensity for sexual abuse. While the question presented in Bobo is not exactly the same as the one considered in this article, the Supreme Court’s broad holding that no cause of action has been created by the act indicates a whistleblower would be out 12 Birmingham Bar Association


Birmingham Bar Association Summer 2016
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