Can My Employer Force Me to Break the Law?

Due to the difference in the levels between employers and employees, an employer may sometimes try to take advantage of this greater power by requesting an employee to commit some illegal act to further business or personal interests.

However, employees will not be shielded from criminal prosecution simply because they felt their job was threatened if they did not commit the act. There may be several protections available to employees who refuse to commit crimes at the directive of their employer.

Whistleblower Statutes

Federal employees are protected by the federal whistleblower statute. Many states have passed similar laws that pertain to state government or even private businesses. The actual law that may provide protection from adverse employment action depends on the type of criminal conduct that is being protected. Whistleblower statutes may expand from environmental dumping to fraudulent accounting practices or unlawful bidding on government contracts. Many whistleblower laws are extremely fact specific and may only pertain to a specific industry or type of misconduct, such as misconduct by financial firms, environmental issues, safety issues or fraud in contracts with the state or federal government.

Whistleblower laws often exist because they protect the public at large, such as regulating the trucking industry, regulating the aviation industry, protecting tax investments, protecting the environment and protecting the economy. Because the general public is served by whistleblower information, these laws seek to protect and encourage workers who are trying to protect others by informing on their employers.

Under a whistleblower law, the usual fact pattern is that an employee reports that the employer is committing some illegal act. These laws usually prevent an employee from being fired for reporting such conduct or from retaliation by the employer.

However, the individual law that may pertain to the case may specify a particular procedure that is required to trigger protection. For example, the statute may require the employee to report the employer’s misconduct to a certain governmental agency. If the employee does not take this step, he or she may not be protected under the whistleblower statute. Additionally, the statute may require that the agency find illegal conduct. If it does not, the employee may not be protected. Others support a good faith effort and provide protection even if illegal conduct is not ultimately found. Other laws protect employees who refuse to commit illegal acts whether or not they report the misconduct.

Violation of Public Policy

Even if there is not a specific whistleblower statute on point or the conduct does not quite rise to the level required in the statute, another protection may be provided by arguing that the employer’s conduct is in violation of public policy. If the employee is fired or other adverse employment action is taken in such a manner that it affects the material terms and conditions of employment, the employee may be shielded from termination or eligible for compensation through a wrongful termination lawsuit.

Employees may have grounds for a wrongful termination lawsuit if they are terminated for reporting their employer’s illegal conduct or because they refuse to obey an employer’s illegal orders. Under this legal theory, the aggrieved employee alleges that allowing the employer to fire the employee is against public policy, meaning that it is bad for society at large to allow an unjust outcome that sets a bad precedent for future cases. In accordance with this public policy argument, the plaintiff alleges that society encourages honest employees to come forward to report fraud, safety issues or other misconduct in order to protect the greater good. As such, the employer should not be permitted to violate this public policy by terminating the employee.

Legal Assistance

Because whistleblower laws and public policy arguments are different in each state, an employment lawyer in the appropriate jurisdiction may be consulted for more specific information.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.