Statutes protect against retaliation.

Byline: ON THE JOB By Dan Grinfas For The Register-Guard

Question: I work for a publicly traded company, and I report to the chief financial officer. I have discovered what I believe are irregularities in the corporation's accounting practices. I am thinking of going over my supervisor's head to advise management, but I am worried about losing my job. Would I have legal protection?

Answer: There are Oregon and federal laws that protect employees who report illegal activities. Based on the information you've provided, it's unlikely you would have protection under the Oregon whistle-blower statutes, but there is a newer federal law that would protect you against retaliation if you report financial abuses in your company.

Let's start with the Oregon civil rights statutes, which include two whistle-blower laws - one for employees of private companies and one for employees of public agencies.

Employees such as you who work for private employers are protected under ORS 659A.230 from discrimination or retaliation when they in good faith report criminal activity to the police, cooperate with a criminal investigation, bring a civil proceeding against an employer, or testify at a civil proceeding or criminal trial.

A related regulation, OAR 839-010-0140, states that you are protected under the "private whistle-blower" law only if you bring a civil proceeding or testify in court.

Protected activities would include filing a lawsuit, contacting an administrative agency to make a complaint, or cooperating with a police or agency investigation.

In your case, if you only report accounting irregularities internally to management, the action wouldn't be protected under the Oregon law.

The answer would be different if you were a public employee. The Oregon Whistleblower Law, at ORS 659A.200 to 659A.224, covers employees of state agencies and offers broader protection. This law applies even to internal discussions or reports of a violation, such as when an employee complains about mismanagement, gross waste of funds, abuse of authority, or some state action that poses a danger to public health and safety.

The federal law that could give you protection as a whistle-blower is the Sarbanes-Oxley Act.

The Sarbanes-Oxley Act makes it unlawful for an employer to take adverse action against an employee who provides information or cooperates in an investigation related to financial fraud.

The law also includes a provision for criminal penalties for people who interfere with an individual's employment because of protected activity.

Under the law, publicly traded companies must establish complaint procedures regarding finances and internal accounting. Companies must let employees make confidential, anonymous reports regarding questionable accounting or auditing.

The U.S. Department of Labor adopted rules in May 2003 to implement the law. An employee who reports what he or she reasonably believes is a securities law violation is protected from discharge, demotion, harassment or discrimination.

The protection applies not only when the employee reports a violation to Congress or a federal agency, but also when the employee reports internally to those with "authority to investigate, discover or terminate misconduct."

An employee who wishes to file a complaint under the Sarbanes-Oxley Act must do so within 90 days of the date of the alleged discrimination.

The Occupational Safety and Health Administration is the division at the U.S. Department of Labor that will conduct the investigation.

To prevail on a whistle-blower discrimination claim, an employee must show that he or she engaged in protected activity (reported a violation), that the employer knew or suspected the employee did so, and that the employee suffered some adverse employment action as a result.

On The Job is written by attorney Dan Grinfas of the Oregon Bureau of Labor and Industries. Contact BOLI at [phone], or 800 N.E. Oregon St. No. 32, Portland, OR 97232.