Ark. Code Ann. § 21-1-604 (2020)
Civil liability — Definition
- A public employee who alleges a violation of this subchapter may bring a civil action for appropriate injunctive relief or actual damages, or both, within one hundred eighty (180) calendar days after the occurrence of the alleged violation of this subchapter.
- An action commenced under this section may be brought in the circuit court for the county where the alleged violation occurred, for the county where the complainant resides, or in the Pulaski County Circuit Court if the complaint is filed against an agency, department, or institution of state government.
- To prevail in an action brought under the authority of this section, the public employee shall establish, by a preponderance of the evidence, that the employee has suffered an adverse action because the employee or a person acting on his or her behalf engaged or intended to engage in an activity protected under this subchapter.
- As used in this section, “damages” means damages for a job-related injury or loss caused by each violation of this subchapter, including, but not limited to, fringe benefits, retirement service credit, compensation for lost wages, benefits, and any other remuneration, and reasonable court costs and attorney's fees.
-
- A public employer shall have an affirmative defense to a civil action brought by a public employee under this subchapter if the adverse action taken against a public employee was due to employee misconduct, poor job performance, or a reduction in workforce unrelated to a communication made pursuant to § 21-1-603.
- The public employer must prove the existence of the public employee's misconduct unrelated to the communication by a preponderance of the evidence.
-
- In the event the Office of Personnel Management implements an employee grievance mediation program, a public employee or public employer may voluntarily participate in mediation under the office's mediation program if either one wishes to resolve a dispute between them that involves an adverse action taken against the public employee.
- Voluntary mediation shall occur before a civil action in which the public employee and public employer are parties has been initiated in a court.
- The Secretary of the Department of Transformation and Shared Services shall adopt voluntary mediation application and request forms.
History. Acts 1999, No. 1523, § 4; 2019, No. 910, § 6121.
Amendments. The 2019 amendment substituted “Secretary of the Department of Transformation and Shared Services” for “Director of the Department of Finance and Administration” in (f)(3).
Case Notes
Constitutionality.
Per the holding in Board of Trustees v. Andrews, 2018 Ark. 12, to the extent the legislature subjected the State to liability in the Arkansas Whistle-Blower Act, § 21-1-601 et seq., it is prohibited by Ark. Const., Art. 5, § 20, and the circuit court erred when it denied defendant’s motion for judgment on the pleadings based on sovereign immunity. The General Assembly’s choice to abrogate sovereign immunity in the Arkansas Whistle-Blower Act is prohibited by the Arkansas Constitution. Ark. Cmty. Corr. v. Barnes, 2018 Ark. 122, 542 S.W.3d 841 (2018).
Evidence.
Because terminated county employee's actions of reporting alleged misdeeds to quorum court members, sitting as a grievance committee, was reporting to the “appropriate authorities,” under § 21-1-602(2)(A)(ii), evidence supporting terminated employee's claim under the Whistle-Blower Act created a question of fact and, thus, it was error for the trial court to have granted the county's motion for a directed verdict. Crawford County v. Jones, 365 Ark. 585, 232 S.W.3d 433 (2006).
Summary judgment on an employee's claim under the Arkansas Whistle-Blower Act, § 21-1-601 et seq., was improper because reasonable minds could determine there was evidence connecting the employee's whistle-blowing communication to the adverse actions he incurred; the employee became the subject of internal investigations almost immediately after his whistle-blowing communication and he presented evidence supporting a causal connection. Bales v. City of Fort Smith, 2016 Ark. App. 491 (2016) (substituted op. on reh'g).
Circuit court erred in granting a city and the chief of the police department summary judgment on an employee's claim under the Arkansas Whistle-Blower Act because reasonable minds could conclude that the adverse actions the employee suffered were a result of his whistle-blowing communication; evidence showed that the chief may not have been a neutral arbiter during the investigatory proceedings against the employee. Bales v. City of Fort Smith, 2016 Ark. App. 491 (2016) (substituted op. on reh'g).
Although the third employee had established an issue of fact as to whether he was a whistle-blower in connection with his report on improper overtime usage, summary judgment was properly granted against him as he failed to offer evidence linking his formal reprimand to his alleged whistle-blowing communication; the employee therefore failed to meet defendants' evidence that the disciplinary measures he received were the result of employee misconduct or poor work performance and were not retaliatory. Bales v. City of Fort Smith, 2016 Ark. App. 491 (2016) (substituted op. on reh'g).
No Violation.
Teacher did not have a cause of action against a school district under the Arkansas Whistle-Blower Act, § 21-1-601 et seq., because the teacher was terminated for misconduct — insubordination, inappropriate and offensive behavior, and making defamatory statements, rather than for any statements he made under the Act. The teacher offered no proof whatsoever of any retaliation or that the reasons given for his termination were a pretext. Hollis v. Fayetteville Sch. Dist. No. 1, 2015 Ark. App. 544, 473 S.W.3d 45 (2015).
Circuit court did not err in dismissing the whistle-blower claims where a former employee failed to provide any proof that her suspension and termination were the result of reporting the transit director's alleged theft, rather than the stated insubordination and budget cuts, and another employee had testified that his problems at work began before he reported the director's alleged theft. Fennell v. City of Pine Bluff, 2016 Ark. App. 275, 492 S.W.3d 887 (2016).
Circuit court properly granted a city and police officers summary judgment because an employee failed to demonstrate the existence of a genuine issue of material fact that he was not terminated for poor job performance; the city and officers presented the employee's deposition testimony in which he admitted to various performance issues, and the chief of police stated he terminated the employee based on information he received from the employee's chain of command. Entmeier v. City of Fort Smith, 2016 Ark. App. 517 (2016).
Statute of Limitations.
Whistleblower retaliation suit under False Claims Act (FCA) was not time-barred by 180-day limit applied to Arkansas public employee whistleblowers because protections of FCA extend to any employee, not just those in public sector, and other state statutes with longer limitations periods were more closely analogous. Townsend v. Bayer Corp., 774 F.3d 446 (8th Cir. 2014).
Cited: Barrows v. City of Fort Smith, 2010 Ark. 73, 360 S.W.3d 117 (2010).