Question: Do at-will employees have protection under the New Mexico Whistleblower Act?
Answer: Not necessarily. At-will employees should proceed with caution.
Purpose of WPA: Protect Workers that Report Illegal Government Activities
The purpose of the New Mexico Whistleblower Act (WPA) is to encourage public employees to report illegal practices without fear of retaliation. The WPA is intended to promote transparency in government to protect against illegal or improper governmental activity. There are substantial protections for employees who report illegal activity, perhaps less protection for “improper” activity. However, at-will employees such as probationary employees should proceed with caution.
At-Will Employment = At-Will Termination
At-will employment means that an employer has very broad discretion in termination of the at-will employee. At-will employment would include most probationary employees by the terms of probationary employment. At-will probationary employees can be terminated with or without cause in the absence of other procedural, policy or contractual protections. Procedural protections might include policy or practice of progressive discipline. Violations of policy will be much easier to prove than violations of practice. Policy is something that is written down. Practice is the way things actually work.
Practices are not necessarily written raising two challenges. First, it will be difficult to establish a practice existed without friendly witnesses. Friendy witnesses might be in short supply in whistleblower cases due to the possible retailiation of which the whistleblower is well aware. Second, related to the first, the whistleblower must prove that the practice was in fact violated.
Discretionary policies and practices are just that, discretionary. This means the employer can take the action if it wants but is not bound take action on a discretionary policy or practice. For instance, the federal district court in New Mexico found that discretionary practice of progressive discipline, as opposed to summary termination, was not enforceable. The practice was not enforceable because it was discretionary. As a result, the whistleblower who had reported illegalities taking place within the governmental entity was not entitled to protection under the law. The case was dismissed.
Employers are given enormous latitude in the exercise of discretionary practices. A discretionary policy is an oxymoron. In other words, if its discretionary, then it really is not a policy and it is unlikely that the courts will enforce it. Unfortunately, this means that the employee reporting illegal agency activity may not be protected.
At-Will Employees Proceed with Caution
It seems not just unfair but outrageous that an employee could be terminated for reporting illegal activities no matter what the status of the employee. Illegal activity should not take place within any New Mexico governmental entity. If it does, the employee reporting it should be protected. Instead, there is a reasonable possibility that the at-will employee will be fired and have no recourse against the unlawful governmental employer.
It is very important for at-will employees to seek legal guidance if they find themselves in this position. It is highly advisable to seek legal guidance prior to reporting illegal or improper conduct. If you would like to discuss whistleblower activities, whether before or after the fact, please contact Collins & Collins, P.C. at 505.242.5958 or online using the form on this page.