Whistleblower Protection Law Summaries

Whistleblower Protection Law Summaries

Maryland, Whistleblower Protection Law Summaries

Maryland's whistleblower provisions are found in the Annotated Code of Maryland at Article 49B, Section 16(f), and in the State Personnel and Pensions Article, Title 3, Section 3-304.

DEFINITIONS

“Employer” means a person engaged in an industry or business who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person. The term includes the state but does not include a bona fide private membership club which is exempt from taxation under Sec. 501(c) of the Internal Revenue Code (Art. 49A, Sec. 15(b)).

“Prohibited acts:” It is an unlawful employment practice for an employer to discriminate against any of the employees or applicants for employment because the employee or the applicant has opposed any unlawful employment practice or because the employee or applicant has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing involving such practice (Art 49A, Sec. 16(f), as amended by S. 205, L. 2001, effective October 1, 2001).

An appointing authority may not take or refuse to take any personnel action as a reprisal against an applicant or employee who discloses information that the applicant or employee reasonably believes evidences (Sec. 3-304(a)):

1. an abuse of authority, gross mismanagement, or gross waste of money;

2. a substantial and specific danger to public health or safety; or

3. a violation of law.

The same applies to an employee who seeks remedies provided under the Maryland Whistleblower Law (Sec. 3-304(a)).

COVERAGE

“Employer” covered under Sec. 16 includes any person engaged in an industry or business who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person. The term includes the State but does not include a bona fide private membership club which is exempt from taxation under Sec. 501(c) of the Internal Revenue Code (Art. 49A, Sec. 15(b)).

Section 3-304 applies only to classified service and unclassified service employees in the executive branch of the state government and applicants for employment in the classified service of the executive branch of the state government (Sec. 3-301).

PROCEDURES

Any person claiming to be aggrieved by alleged discrimination prohibited by Sec. 16(f) may file a complaint with the Maryland Human Relations Commission. The complaint must be filed within six months after the alleged violation occurred (Sec. 9A(a)). After the filing of any complaint, the Executive Director must consider the complaint and refer the matter to the staff for prompt investigation.

If the investigation results in the finding that there is probable cause to believe that a discrimination has been committed, the Commission must try to eliminate the act by conciliation, conference or other informal means. Finding of no probable cause by the Commission can be appealed to the circuit court (Sec. 10(a)-(d)). If informal methods fail, the Commission will issue a formal hearing request before the examiner (Sec. 11).

An applicant or employee claiming to be aggrieved by a violation of Sec. 3-304 may file a complaint with the Secretary of Personnel. The complaint must be submitted within one year of the day on which the complainant first knew or should have known of the violation (Sec. 3-305).

Upon receipt of the complaint, the Secretary must investigate the charges in the complaint and provide the appointing authority with an opportunity to respond in writing to the complaint (Sec. 3-306).

If, upon completion of the investigation, the Secretary determines that a violation has not occurred, the Secretary must dismiss the complaint. If the Secretary determines that a violation has occurred, the Secretary must take remedial actions that may include promotion, reinstatement, and back pay. The appointing authority may also be subject to disciplinary actions (Sec. 3-307).

A formal hearing is held if the complainant challenges the adequacy of the remedial action taken by the Secretary or the Secretary fails to issue findings within 60 days after the day the complaint is filed and the complainant requests a hearing. A complainant who prevails at a hearing may be awarded any appropriate relief. Any party aggrieved by the final determination of the Secretary may appeal the decision for judicial review (Sec. 3-308).

WHAT THE EMPLOYER MUST DO

A supervisor, appointing authority or the head of a principal unit may not take or refuse to take any personnel action as a reprisal against an applicant or employee who discloses information that the applicant or employee reasonably believes evidences (Sec. 3-304(a); and Sec. 5-305, as repealed and reenacted by Ch. 118 (S. 95), L. 2002, effective October 1, 2002):

1. an abuse of authority, gross mismanagement, or gross waste of money;

2. a substantial and specific danger to public health or safety; or

3. a violation of law.

The same applies to an employee who seeks remedies provided under the Maryland Whistleblower Law (Sec. 3-304(a)).

An employee in the State Personnel Management System who seeks relief for a violation of Sec. 5-305 of this subtitle (above) may elect to file (Sec. 5-307, as amended by Ch. 118 (S. 95), L. 2002, effective October 1, 2002):

1. a complaint under Sec. 5-309 of this subtitle; or

2. a grievance under Title 12 of this article.

An employee of the University System of Maryland who is eligible to file a grievance under Title 13 of the Education Article and seeks relief for a violation of Sec. 5-305 of this subtitle may elect to file (Sec. 5-307, as amended by Ch. 118 (S. 95), L. 2002, effective October 1, 2002):

1. a complaint under Sec. 5-309 of this subtitle; or

2. a grievance under Title 13 of the Education Article.

An employee of Morgan State University who is eligible to file a grievance under Title 14 of the Education Article and seeks relief for a violation of Sec. 5-305 of this subtitle may elect to file (Sec. 5-307, as amended by Ch. 118 (S. 95), L. 2002, effective October 1, 2002):

1. a complaint under Sec. 5-309 of this subtitle; or

2. a grievance under Title 14 of the Education Article.

Confidentiality.- Effective October 1, 2009, information obtained as part of an investigation conducted under this subtitle is confidential within the meaning of Title 10, Subtitle 6 of the State Government Article (State Personnel and Pensions Article, Sec. 5-314, as added by Ch. 359 (S. 81), L. 2009, effective October 1, 2009).

Fair employment practices.- It is an unlawful employment practice for an employer to discriminate against any of the employees or applicants for employment because the employee or the applicant has opposed any unlawful employment practice or because the employee or applicant has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing involving such practice (Art 49A, Sec. 16(f), as amended by S. 205, L. 2001, effective October 1, 2001).

Health Care Worker Whistleblower Protection Act.- Subject to Sec. 1-403, an employer may not take or refuse to take any personnel action as reprisal against an employee (defined as any individual licensed or certified by a board under this article who performs services for and under the control and direction of an employer for wages or other remuneration, but does not include a state employee) because the employee (Secs. 1-401 and 1-402, as added by H. 329, L. 2002, effective October 1, 2002):

1. discloses or threatens to disclose to a supervisor or board an activity, policy or practice of the employer that is in violation of a law, rule or reg;

2. provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule or reg;

3. objects to or refuses to participate in any activity, policy, or practice in violation of a law, rule or reg.

The protection provided against a violation of Sec. 1-402 above only applies if (Sec. 1-403, as added by H. 329, L. 2002, effective October 1, 2002):

1. the employee has a reasonable, good faith belief that the employer has, or still is, engaged in an activity, policy, or practice that is in violation of a law, rule, or reg;

2. the employer's activity, policy, or practice that is the subject of the employee's disclosure poses a substantial and specific danger to the public health or safety; and

3. before reporting to the board: (a) the employee has reported the activity, policy, or practice to a supervisor or administrator of the employer in writing and afforded the employer a reasonable opportunity to correct the activity, policy, or practice; or (b) if the employer has a corporate compliance plan specifying who to notify of an alleged violation of a rule, law, or regulation, the employee has followed the plan.

Any employee who is subject to a personnel action in violation of Sec. 1-402 above may institute a civil action in the county where (Sec. 1-404, as added by H. 329, L. 2002, effective October 1, 2002):

1. the alleged violation occurred;

2. the employee resides; or

3. the employer maintains its principal offices in the state.

The action must be brought within one year after the alleged violation occurred, or within one year after the employee first became aware of the alleged violation (Sec. 1-404, as added by H. 329, L. 2002, effective October 1, 2002).

In any action brought under this subtitle, a court may (Sec. 1-405, as added by H. 329, L. 2002, effective October 1, 2002):

1. issue an injunction to restrain continued violation of this subtitle;

2. reinstate the employee to the same, or an equivalent position held before the violation of Sec. 1-402 above;

3. remove any adverse personnel record entries based on or related to the violation of Sec. 1-402 above;

4. reinstate full fringe benefits and seniority rights;

5. require compensation for lost wages, benefits, and other remuneration; and

6. assess reasonable attorney's fees and other litigation expenses against: (a) the employer, if the employee prevails; or (b) the employee, if the court determines that the action was brought by the employee in bad faith and without basis in law or fact.

In any action brought under this subtitle, it is a defense that the personnel action was based on grounds other than the employee's exercise of any rights protected under this subtitle (Sec. 1-406, as added by H. 329, L. 2002, effective October 1, 2002).

State contractor employees.- Specified employers that enter state procurement contracts must provide written notice of certain protections and remedies to employees. An employer may not take or refuse to take specified personnel actions against employees who disclose unlawful behavior, refuse to participate in unlawful behavior, or seek remedies following certain disclosures (State Finance and Procurement Article, Subtitle 3, as added by Ch. 397 (H. 1044), L. 2004, effective July 1, 2004, with retroactive application to actions on or after February 17, 2003).

ENFORCEMENT

The Maryland Human Relations Commission is charged with enforcing Sec. 16 provisions.

The Maryland Secretary of Personnel is responsible for the enforcement of Sec. 3-304. Employees aggrieved by Sec. 3-304 violations may file a complaint with the Secretary of Personnel.

WHO TO CONTACT

Contact the Maryland Commission on Human Relations at William Donald Schaefer Towers, 6 St. Paul Street, Suite 900, Baltimore, MD 21202. MD toll-free: 1-800-637-6247; Voice: (410)767-8600. Fax: (410) 333-1841; TTY: (410) 333-1737. Internet: http://www.mchr.state.md.us/

Contact the Secretary of Personnel at 301 W. Preston Street, Baltimore, MD 21201. Telephone: (410) 225-4847. Fax: (410) 333-5262.

PENALTIES

There are no penalties for violating Sec. 16, but any person who claims to be aggrieved under Sec. 16 and pursues a complaint can be guilty of a misdemeanor if the Commission find the complaint to be unfounded and the court finds that the complaint was made maliciously. The person may be fined not more than $500 or imprisoned for a period not exceeding one year, or both (Sec. 12(b)).