Jessica Hill

The Ninth Circuit Court of Appeals’ recent opinion, Brunozzi v. Cable Communications Inc., 851 F.3d 990 (9th Cir. 2017), demonstrates an ongoing trend for courts to provide broad protection for work-related complaints under Oregon law.[1] The Ninth Circuit’s broad interpretation of an Oregon whistleblowing statute serves as a warning to employers to take employees’ internal complaints seriously and to consider the legal implications when responding to such complaints.

Brunozzi involved two cable communications technicians who disagreed with their employer’s pay structure. Among other complaints, the two employees expressed to their supervisor that they thought the employer’s overtime pay structure was improper and unlawful. The employer later terminated the technicians. One critical issue in the case was whether the technicians’ internal complaints of alleged wage violations are protected by ORS 659A.199, an Oregon whistleblowing statute.

This whistleblowing statute provides that it is unlawful for an employer to discriminate or retaliate against an employee for the reason that the employee has “in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule, or regulation.” Previously, in ­­­­­Hall v. State, 274 Or. App. 445, 451-52, 366 P.3d 345 (2015), the Oregon Court of Appeals broadly interpreted this statutory provision, holding that the statute protects an employee’s subjective belief that an employer is violating the law. That is, an employee’s “good faith” complaint alleging illegal acts is protected, even if the employee’s complaint is objectively incorrect as to whether a legal violation has occurred.[2]

In Brunozzi, the plaintiffs asked the Ninth Circuit to broaden the protection of the statute even further. The court addressed whether the whistleblower statute protects an employee’s good faith complaint to the employer, often referred to as internal reporting. Since the statute does not designate to whom protected complaints can be made, and no Oregon court had previously shed any light on the matter, the Ninth Circuit addressed the issue as one of first impression. The United States District Court of Oregon below determined that the statute limited its protections to reports to external authorities—i.e., entities outside of the employer. The Ninth Circuit, however, rejected this interpretation and determined that the statute casts a wider net.

As an initial matter, the Ninth Circuit indicated that the statute’s silence as to whom an employee must report his or her complaint to in order to receive protection suggests broad application. The court then turned to Oregon’s statutory interpretation framework to guide its analysis.[3] Accordingly, because the Oregon legislature did not define the term “report,” the Ninth Circuit deferred to the plain meaning of the term. The court found that the broad nature of the dictionary definition of “report”—to “narrate, relate, tell”—supported the plaintiffs’ position that both external and internal reports are protected by the statute.

The court then looked to the legislative history of the statutory provision to further inform its analysis. The court identified a number of instances from the legislative hearings discussing the whistleblower statute where the bill’s sponsor and other legislators stated that the bill’s purpose was to protect those who bring violations of law “to the attention of a superior in the chain of command.” Using this legislative history as strong additional support, the court held that the statute protected both internal and external complaints.

Although Brunozzi is not binding on Oregon’s state courts, employers would be wise to take heed of its warnings for several reasons. First, the opinion is persuasive authority for Oregon state court plaintiffs. Second, the Ninth Circuit’s analysis provides a good indication as to how Oregon courts would likely analyze the same issue. The Ninth Circuit used Oregon’s method of statutory construction and placed considerable weight on legislative history, which Oregon courts have increasingly embraced.[4] Moreover, the statute’s language is broad in nature, and Oregon courts have treated it as such. Third, unless and until an Oregon court rules otherwise, the Ninth Circuit’s holding is binding on lower federal courts faced with the same issue. Whether because the plaintiff’s state complaint is paired with federal claims or because the defendant employer is residentially diverse, a whistleblower case can often end up in federal court either through the initial filing or removal by the defendant.

Therefore, until the Oregon Court of Appeals decides to address this exact question, employers and practitioners should be aware that employees’ internal complaints regarding potential legal violations—whether or not they can be substantiated—may receive protection under this provision and should evaluate next steps in light of this possibility.

[1] See, e.g., Harper v. Mount Hood Cmty. College, 283 Or. App. 207, 388 P.3d 1170 (2016) (holding that Oregon’s public employee whistleblower law could protect internal reports of legal violations even when the plaintiff’s job description envisioned her disclosing such violations).

[2] See Hall, 274 Or. App. at 453 (“Indeed, ORS 659A.199 is more express insofar as it refers to an employee’s good faith reporting of information that the employee ‘believes’ is evidence of unlawful activity. Reference to the employee’s belief indicates a subjective, good faith standard.”).

[3] Under this framework, a court looks to the text and context of the statute as the best evidence of the legislature’s intent. The court can also look to legislative history to inform its analysis of the text and context. If the statutory provision remains ambiguous, the court will then turn to generally accepted canons of construction. See State v. Gaines, 346 Or. 160, 164-73, 206 P.3d 1042 (2009).

[4] See, e.g., Gaines, 346 Or. 160; Handy v. Lane Cnty., 274 Or. App. 644, 681, 362 P.3d 867 (2015); State v. Clemente-Perez, 357 Or. 745, 759, 359 P.3d 232, 241 (2015).