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There may not be a more conflicting situation for an employee than discovering that their employer is engaged in wrongful conduct in violation of the law. Such a situation presents a number of difficult questions: Should I tell someone? Who should I tell?  Should I bring it up to my employer? If I do, will I be retaliated against and lose my job? If you find yourself in the middle of a situation like this, it is imperative that you understand Missouri’s whistleblower protection laws.

Missouri is an at-will state, meaning that employees can generally be discharged for any reason or for no reason at all, and they have no cause of action for wrongful termination under these circumstances. However, the at-will employment doctrine has some narrow limitations. One of those limitations is the public policy exception, commonly referred to as the whistleblowing exception. The whistleblowing exception provides in relevant part that an employee may not be terminated for reporting wrongdoings or violations of the law to superiors or public authorities.

A recent decision by the Missouri Court of Appeals reaffirmed Missouri’s long-standing rule that “superiors” does not include the wrongdoers themselves. In Drummond v. Land Learning Foundation, et al., the plaintiff employee worked for a very small company that was owned by two brothers. During his employment, the plaintiff suspected that the brothers were using a certain foundation to engage in tax fraud. During a December 2005 meeting, the plaintiff confronted the brothers about whether they were engaging in tax fraud, and the brothers thereafter terminated the plaintiff’s employment.  In response, the plaintiff filed a lawsuit against the brothers, among others, for wrongful termination in violation of public policy.

The trial court granted judgment against the plaintiff, finding in relevant part that the plaintiff’s report of wrongdoing directly to the wrongdoers themselves—the brothers—did not constitute whistleblowing within the public policy exception.  On appeal, the Missouri Court of Appeals agreed with the trial court.  In its decision, the court acknowledged that internal reporting to superiors of illegal activity by co-workers can constitute protected activity under the whistleblowing exception.  However, “a report of wrongdoing to the wrongdoer is insufficient to invoke the whistleblowing public policy exception.”  (emphasis added).  The court offered the following reasoning:

Reporting to the wrongdoer does not expose the wrongdoer or his wrongdoing and, thus, does not further the accepted clear mandate of public policy.  While a report of wrongdoing to the wrongdoer may in some instances have the intended effect of stopping future criminal activity, it does not expose wrongdoers and their past wrongdoings in such a way as to remedy a public ill.  Instead, it allows wrongdoers to escape detection and avoid prosecution for past wrongdoing, while in no way affording the victims an opportunity to protect themselves from further wrongdoing.  (internal citations and quotations omitted).

Ultimately, while the appellate court acknowledged its sympathy for the plaintiff, the court made clear that an outside third party authority would have been the proper authority for the plaintiff to report his suspicions. As such, the court affirmed the trial court’s judgment.