Joel Dillard

Representing Mississippi Workers

Termination for reporting a crime

The McArn Doctrine

Under state law, it is illegal to terminate an employee for reporting a crime, or for refusing to participate in a crime at work. This doctrine was announced in a case called McArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993).

These cases require a pretty comprehensive understanding of the complete criminal code, because a number of things which are never prosecuted are nonetheless technically crimes - i.e., everything from adultery to your March Madness bracket - and most especially in government employment.

The firm's McArn litigation

The firm has litigated a number of these cases. For example, in one case, a teacher in a suburban school district was fired in retaliation for a number of complaints she made about discrimination against her students because of their national origin. In addition to violating Title VI and Title VII of federal law, this also gave rise to a McArn claim because, among other reasons, illegal retaliation is a crime under Miss. Code § 97-9-127.

In another case, there was a suit against an employer too small to be subject to Title VII, where the boss offered an employee money in exchange for sex. This created an environment so hostile she had to quit - which was a constructive discharge in retaliation for refusing to commit the crime of adultery (both were married) and prostitution.

Related: False Claims Act

If the crime at issue happens to be fraud against the government such as medicare fraud or self-dealing/kickbacks, then a qui tam or False Claims Act case may be advisable. These cases can allow the employee to recover significant damages proportional to the scope of the fraud.

This is a complex area on which I will be posting in the blog shortly. This page will be updated at that time.

Specific statutes protecting whistleblowers:

An industry-by-industry guide

Virtually everyone is covered by some OSHA safety regulation or other, but the statute protecting employees that blow the whistle on OSHA safety violations - Section 11(c) of the OSH Act - is famously anemic. It is hard to convince OSHA's whistleblower office that the law has been violated, and if they rule against the employee there is no further recourse.

But there are a number of other industry-specific statutes, many of which do provide extremely robust protections to whistleblowers. These are some of my favorite cases, and this page will provide a brief survey of the law in some of these special industries. This review is not comprehensive.

The strongest protections are in the following industries:

In these cases, if the employee can show that the whistleblowing contributed in any way to their termination, then the employer must affirmatively prove by clear and convincing evidence that they would have fired the employee regardless of the whistleblowing - a difficult standard to meet.

Many of these cases can be tried in either federal court or in the offices of the administrative law judges in the Department of Labor. Although some of the ALJs are worse than others, on the whole the ALJs take their job seriously - and their sole job is, for the most part, protecting whistleblowers, so they really understand these cases.

It is a good forum to be in as an employee - so long as the attorney has experience with the forum and is able to manage the often breakneck pace of this kind of administrative litigation.


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