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Birmingham Bar Association Summer 2016

of luck if he attempted to sue his former employer under it. In sweeping language, the Supreme Court seemed to rule out all private causes of action by holding that the “Child Abuse Reporting Act creates a duty owed to the general public, not to specific individuals, and, consequently, it does not create a private cause of action in favor of individuals.” Id. Any cause of action under the statute, explicit or implied, appears to have been foreclosed under Alabama Supreme Court precedent for workers who are unfortunate enough to make mandatory reports of abuse or neglect and are fired for doing so. This is likely the case despite the Legislature’s adding of misdemeanor penalties against employers who discharge, discipline, or penalize an employee who makes a mandatory report of child abuse or neglect after Bobo was decided. Code of Ala. § 26-14-3. The portion of the statute dealing with legislative intent has not changed in the aftermath of Bobo. The legislative intent section still states that its purpose is “to protect children whose health and welfare may be adversely affected through abuse and neglect” and to “prevent further abuses and neglect.” Code of Ala. § 26-14-2. Despite this stated purpose, the law contains no indication that a worker who is fired for blowing the whistle enjoys any job protection under the law. This lack of whistleblower protection exists even though Alabama law allows day cares that operate as part of churches to go unregulated and uninspected by the Alabama Department of Human Resources. Anna Claire Vollers, State Legislator Vows to Introduce Bill Requiring All Day Cares to Be Licensed After Reading Reveal Story on AL.com, AL.com (April 14, 2016), http://www.al.com/news/index. ssf/2016/04/state_legislator_vows_to_intro. html. Especially in cases of day cares not subject to state oversight, a whistleblower could be the only line of defense between a child and an abuser. Although child abuse victims depend on whistleblowers to protect them, Alabama’s only encouragement for mandatory whistleblowers to come forward is the threat of fines, imprisonment, and a criminal record. Nursing home whistleblowers would also likely fail to convince an Alabama court to find an implied cause of action under the nursing home whistleblower statute. That statute lacks even the meager misdemeanor penalties against employers for retaliating against whistleblowers that the child abuse statute contains. The legislative declaration in the statute makes clear that the purpose of that law is to protect the aged and the disabled from “exploitation, neglect, abuse, and degrading treatment.” Code of Ala. § 38-9-3. A court is likely to follow the Bobo logic that the statute is in place for general welfare, not to bestow private rights of action. In light of research showing that tips from Whistleblower Rights whistleblowers are the leading method of unearthing wrongdoing, superior to audits and regulatory reviews, it would be sensible for the Legislature to provide a private right of action to whistleblowers who report abuse or neglect. The Association of Certified Fraud Examiners has found that whistleblowing accounts for more than 40 percent of how corporate fraud is detected. The Age of The Whistleblower, The Economist, (Dec. 5, 2015), http://www.economist.com/news/ business/21679455-life-getting-betterthose who-expose-wrongdoing-companies continue-fight. However sensible it might be to offer the carrot of job protection as well as the stick of criminal penalty to mandatory whistleblowers, in the face of legislative inaction, Alabama courts are unlikely to afford any job protection to nursing home abuse whistleblowers, despite the safety of seniors often depending on caretakers who stand up for them. When mandatory whistleblowers come forward, they are not only risking their jobs, they may also be risking their careers. A child abuse or nursing home abuse whistleblower who is fired and then blacklisted by a former employer would likely find little protection under Alabama’s weak blacklisting law. Alabama law makes it a misdemeanor for “any person, firm, corporation, or association of persons who maintains what is commonly called a blacklist or notifies any other Continued on page 30 Birmingham Bar Bulletin/ Summer 2016 13


Birmingham Bar Association Summer 2016
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