Call Us 919-240-4054Nurses and many other healthcare professionals have a duty to report abuse of their patients. Similarly, North Carolina requires people who see that a child or elderly person is endangered by a caregiver to make a report. From time to time, people in the agricultural and human services industries have documented illegal abuse and have reported them to the authorities. Since these situations often involve victims who can’t speak for themselves, paper records and photographs or video are extremely helpful in protecting the vulnerable.
Of course, employees who are dependent on an employer for a paycheck are in a difficult situation when they consider documenting their employer’s illegal activities. Now, a law that went into effect January 1, 2016 throws an additional wrench in the works. It was known from the beginning as the “ag-gag bill” because its authors said that they were targeting people who would work undercover in the animal processing industry in order to “steal secrets.”
But this law does not address the theft of secrets. North Carolina already has a law on the books dealing with the theft of trade secrets. Nor is this law limited to agriculture. Instead, the law applies to all businesses in North Carolina, including day care establishments, nursing homes, and pharmacies, and targets employees who enter their employer’s “non-public areas,” breach their “duty of loyalty to the employer.”
The law gives an employer the right to sue an employee who exceeded their authority and without authorization removes the employer’s data, records or documents, or takes photographs or video on the employer’s premise. If the employee loses, he can be ordered to pay the employer court costs, attorney fees, punitive damages of $5000 per day, and compensation for any actual damages caused by the employee’s conduct.
Backers of the law said it did not apply to whistleblowers, but it contains no whistleblower exception, such as an exemption for an employee whose conduct reveals abuse, neglect, or the proven violation of safety regulation. Governor McCrory vetoed the bill, House Bill 405, saying he wanted lawmakers to do more to protect the “honest employees” who “uncover criminal activity.” However both houses of the legislature voted to override his veto, and no such safeguard was ever put into the law.
Hopefully, employees who see children, animals, the elderly and other vulnerable people being abused, or who see violations of public safety codes will continue to speak up. However, unless it is an emergency, we suggest you seek legal advice when considering how you are going to document what you have seen. North Carolina’s law is considered by many to be the strictest of any such laws in the nation.
If a business is caught engaging in clearly illegal activity, it is hard to see how it would have the nerve to turn around and sue the employee who caused it to get caught, but this new law gives them that right. Also, I’m not sure how our courts are going to define an employee’s “duty of loyalty to the employer.” Under the law, employment is an exchange of wages for the performance of work. That supposes that there is a duty to perform that work honestly and diligently and to attend to the employer’s interests while on the job. Only our judges and juries can now decide how far that duty extends when the employee witnesses lawbreaking by the employer.
