2008
Montgomery County Bar CLE
Representing Whistleblowers in
Adler Wrongful Discharge Actions
R. Scott Oswald
The Employment Law Group® Law Firm
Tel: 202.261.2806
Fax: 202.261.2835
soswald@employmentlawgroup.net
www.employmentlawgroup.net
Overview/Summary
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
Adler Theories of Coverage
Tips for Representing Maryland
Whistleblowers in Adler actions
Theories of Coverage
 MD common law provides a robust remedy for
wrongful discharge in violation of public policy
 Adler tort is NOT a general whistleblower statute
 The Adler tort is limited to three forms of
protected conduct:
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
refusing to engage in illegal activity
exercising a statutory right or privilege
fulfilling a statutory obligation
Refusing to Engage in Illegal
Activity
– The Adler tort protects employees
terminated for refusing to engage in
illegal activity.
– Examples include:

Terminating an H.R. director because she
refused to commit health care benefit fraud.
– See, e.g., Magee v. Dan Sources Tech.l Servs.,
Inc., 137 Md. App. 527 (2001)
– 18 U.S.C. § 1347 prohibits individuals from
knowingly and willfully defrauding health care
benefit programs.
Refusing to Engage in Illegal
Activity
– Terminating an employee because she
refused to engage in prostitution.
 See, e.g., Perry v. FTData, Inc., 198 F.
Supp. 2d 699 (D. Md. 2002).
 Md. Ann. Code, Art. 27 § 15 (1957),
which prohibits individuals from
engaging in prostitution.
Exercising a Statutory Right


Terminating an employee for exercising
his or her statutory rights can give rise to
an Adler claim.
Examples include:
– Discharging an employee solely because the
employee filed a worker’s compensation claim.
 See, e.g., Ewing v. Koppers Co., 312 Md. 45
(1998).
 Md. Ann. Code, Art. 101 § 39A (1957), which
prohibits an employer from discharging an
employee because the employee filed a worker’s
compensation claim.
Exercising a Statutory Right
– Terminating an employee because she
refused to submit to a polygraph test.
 See, e.g., Moniodis v. Cook, 64 Md. App.
1 (1985).
 Md. Ann. Code, Art. 100 § 95 which
prohibits administering a lie detector test
as a condition of employment.
Fulfilling a Statutory
Obligation

Adler tort protects an at-will employee who is
terminated for fulfilling a statutory obligation.

Cases construing this form of protected conduct:
– Recognizing an Adler claim where a former
teacher was terminated for reporting child abuse
to a state child care licensing agency


See, e.g., Bleich v. Florence Crittenton Servs., 98 Md. App.
123 (1999).
Md. Ann Code, Fam. Law §§ 5-702(1), 5-704 (a) which
requires educators to report any suspected abuse or
neglect of children.
Fulfilling a Statutory
Obligation
– Employee alleging retaliation for
cooperating in a state and federal
prosecution of the employer for dumping
toxic waste, could not maintain an Adler
claim because CERCLA provides its own
remedy for retaliation.

See, e.g., Miller v. Fairchild Indus., Inc., 97 Md.
App. 324 (D. Md. 1987).
 42 U.S.C § 9610, which prohibits employers
from retaliating against employees who provide
information to state or federal government.
Source of Public Policy Must Lack
Its Own Enforcement Mechanism
 Before bringing an Adler claim, evaluate
whether the source of public policy
originates from a statute that provides its
own remedy.
 If a statute already contains a remedy for
vindicating the public policy objectives, then
the discharged employee can pursue a claim
only through the existing statute.
Individual Liability

An Adler plaintiff can name an
individual defendant if the individual
is:
– an executive (alter ego of the
corporation) or
– involved in decision making
Damages


The Adler claim is a tort.
Tort damages include lost wages, compensatory
damages, and where there is a showing of
malice, punitive damages.
– Kessler v. Equity Mgmt., Inc., 82 Md. App. 577,
591 (1990)

“Punitive Damages are awarded ‘[b]ased upon
the heinous nature of the defendant’s tortious
conduct....”
– Darcars Motors of Silver Springs, Inc. v. Borzym,
379 Md. 249, 263 (2004)
Pleading Requirements and
Burden of Proof

An employee must plead with specificity the public
policy that the employer violated by discharging the
employee.
– Adler v. Am. Standard, Corp., 291 Md. 31, 44 (1981)
(rejecting plaintiff’s complaint because the complaint
was “too general, too conclusory, too vague and
lacking in specifics to mount up to a prima facie
showing”)
– Plaintiff must establish a prima facie case consisting of
the following elements:



Plaintiff was an at-will employee terminated by the defendant;
The termination of the plaintiff’s employment violates a
specific public policy; and
There is a causal nexus between the public policy violation and
the employer’s decision to terminate the plaintiff.
Tips for Representing
Whistleblowers in Adler actions
 Case Selection
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A long-term employee (more than 9 years) with a
satisfactory or better performance record and some prior
expertise in the subject matter about which she is blowing
the whistle
A whistleblower who discloses wrongdoing in a timely
manner using the employer’s established complaint
protocol in a non-contumacious manner
A whistleblower who is not complicit in her employer’s
wrongdoing
A whistleblower who complains about a matter of public
concern
A whistleblower who the employer terminates within 6
months of her protected disclosure, exercise of statutory
right, or refusal to engage in an illegal act
Tips for Representing
Whistleblowers in Adler actions
 Forum Selection
 Theme
 Deciding Whether to Name an Individual
Defendant
 Discovery
 Maximizing Damages
Questions?
For further information, contact:
R. Scott Oswald
The Employment Law Group® Law Firm
soswald@employmentlawgroup.com
www.employmentlawgroup.com
Tel: 202.261.2806
Fax: 202.261.2835