| South Carolina whistleblowers who are employed by | | | | However, the Act does not supersede the State |
| a South Carolina state government agency are | | | | Employee Suggestion Program, and if a whistleblower |
| protected from adverse employment actions when | | | | employee's agency participates in the State |
| they timely report violations of state or federal laws | | | | Employee Suggestion Program, then items identified |
| or regulations or other wrongdoing. South Carolina | | | | as involving "wrongdoing" must be referred as a |
| attorneys, lawyers and law firms who represent SC | | | | suggestion to the program by the employee. A |
| state government whistleblowers should be aware of | | | | South Carolina government employee is entitled to |
| the protections afforded to these employees who | | | | only one reward either under the Act or under the |
| are fired, demoted, suspended or otherwise | | | | State Employee Suggestion Program, at the |
| subjected to an adverse action in reaction to a | | | | employee's option. Id. |
| report of fraud or other wrongdoing by a public | | | | Civil Remedies for SC Whistleblowers |
| agency or one of its officers or employees. South | | | | If a South Carolina government employee suffers an |
| Carolina whistleblower attorneys, lawyers and law | | | | adverse action related to employment within one (1) |
| firms should also be aware of the administrative | | | | year after having timely filed a protected report |
| requirements necessary to invoke the protections of | | | | which alleged wrongdoing, the employee may |
| the state's anti-retaliation statute, as well as the relief | | | | institute a non-jury civil action against the public body |
| provisions afforded to such SC whistleblowers. There | | | | employer after exhausting all available grievance or |
| are also some whistleblower protections for | | | | other administrative remedies, and such grievance |
| government and private employees who report | | | | administrative proceedings have resulted in a finding |
| violations of South Carolina's occupational safety and | | | | that the employee would not have been disciplined |
| health statutes, rules or regulations. | | | | but for the reporting of alleged wrongdoing. S.C. |
| South Carolina's Whistleblower Protection Act for | | | | Code § 8-27-30(A). The adverse action or |
| State Government Employees | | | | retaliations can include is dismissal, suspension from |
| South Carolina's General Assembly enacted legislation | | | | employment, demotion, or a decrease in |
| called the "Employment Protection for Reports of | | | | whistleblower's compensation. The statutory |
| Violations of State or Federal Law or Regulation" (the | | | | remedies under the Act that the adversely effected |
| "Act") to protect South Carolina state employees | | | | employee may recover are (1) reinstatement to his |
| from retaliation or disciplinary actions when they | | | | or her former employment position; (2) lost wages; |
| report violations of state or federal laws or | | | | (3) actual damages not to exceed Fifteen Thousand |
| regulations or other wrongdoing including fraud and | | | | Dollars ($15,000); and (4) reasonable attorney fees as |
| abuse. See South Carolina Code § 8-27-10, et seq. | | | | determined by the court. Id. However, an award of |
| The Act prohibits a South Carolina public body from | | | | attorney's fees has a cap under the Act, and may |
| decreasing the compensation of, or dismissing, | | | | not exceed Ten Thousand Dollars ($10,000) for any |
| suspending or demoting, a state employee based on | | | | trial and Five Thousand Dollars ($5,000) for any |
| the employee's filing of a protected report of | | | | appeal. Id. |
| wrongdoing with an appropriate authority. S.C. Code | | | | At least one court has addressed the Act's remedies |
| § 8-27-20(A). The protected report must be made | | | | with respect to a whistleblower employee. In Lawson |
| by the SC whistleblower in good faith and not be a | | | | v. South Carolina Department of Corrections, 340 S.C. |
| mere technical violation. Id. The Act does not apply | | | | 346, 532 S.E.2d 259 (2000), the S.C. Supreme Court |
| to private, non-government employers or employees. | | | | held that when a whistleblower employee is limited to |
| S.C. Code § 8-27-50. | | | | a recovery under the statutory remedies of the Act |
| A public body under the Act means one of the | | | | when the employee alleges a wrongful discharge only |
| following South Carolina entities: (A) a department of | | | | on the grounds of his whistleblowing. In Lawson, the |
| the State; (B) a state board, commission, committee, | | | | court granted summary judgment against the |
| agency, or authority; (C) a public or governmental | | | | employee because he could not point to a violation |
| body or political subdivision of the State, including | | | | of any policy, ethics rule, or other regulation as a |
| counties, municipalities, school districts, or special | | | | basis for his whistleblower action which amounted to |
| purpose or public service districts; (D) an organization, | | | | "wrongdoing" under the Act. Id. |
| corporation, or agency supported in whole or in part | | | | Adverse Actions Based Upon Causes Independent of |
| by public funds or expending public funds; or, (E) a | | | | a Protected Report |
| quasi-governmental body of the State and its political | | | | In the event the appropriate authority which |
| subdivisions. S.C. Code § 8-27-10(1). | | | | received the report determines the whistleblower |
| A South Carolina employee under the Act is an | | | | employee's report is unfounded or a mere technical |
| employee of any South Carolina public body entity, | | | | violation and is not made in good faith, the public |
| generally excluding those state executives whose | | | | body may take disciplinary action including termination |
| appointment or employment is subject to Senate | | | | and, notwithstanding the filing of a report, a public |
| confirmation. S.C. Code § 8-27-10(2). | | | | body may dismiss, suspend, demote, or decrease the |
| An appropriate authority under the Act means either | | | | compensation of an employee for causes |
| (A) the public body that employs the whistleblower | | | | independent of the filing of a protected report. Id. A |
| making the protected report, or (B) a federal, state, | | | | South Carolina public body may also impose |
| or local governmental body, agency, or organization | | | | disciplinary sanctions against any direct line |
| having jurisdiction over criminal law enforcement, | | | | supervisory employees who retaliate against another |
| regulatory violations, professional conduct or ethics, | | | | employee for having filed a good faith report. |
| or wrongdoing, including but not limited to, the South | | | | Statute of Limitations |
| Carolina Law Enforcement Division ("SLED"), a County | | | | Under the Act, a whistleblower's civil action must be |
| Solicitor's Office, the State Ethics Commission, the | | | | commenced within one (1) year after the accrual of |
| State Auditor, the Legislative Audit Council (the | | | | the cause of action or exhaustion of all available |
| "LAC"), and the Office of Attorney General (the | | | | grievance or other administrative and judicial |
| "SCAG"). S.C. Code § 8-27-10(3). When a protected | | | | remedies, or such a lawsuit is forever barred. S.C. |
| report is made to an entity other than the public | | | | Code § 8-27-30(B). |
| body employing the whistleblower making the report, | | | | Occupational Safety and Health Act ("OSHA") |
| the Act requires that the employing public body be | | | | Whistleblower Protections |
| notified as soon as practicable by the entity that | | | | South Carolina has a separate whistleblower |
| received the report. Id. | | | | protection statute for employees who report |
| A SC whistleblower employee's protected report | | | | violations of statutes, rules or regulations regarding |
| under the Act is a written document alleging waste | | | | occupational safety and health. S.C. Code § |
| or wrongdoing which is made within sixty (60) days | | | | 41-15-510. The protected activities include filing a |
| of the date the reporting employee first learns of | | | | complaint, instituting a proceeding, or testifying about |
| the alleged wrongdoing, and which includes (a) the | | | | OSHA violations. Any employee who has been |
| date of disclosure; (b) the name of the employee | | | | discharged or otherwise discriminated against by any |
| making the report; and, (c) the nature of the | | | | person in violation of Section 41-15-510 has the right |
| wrongdoing and the date or range of dates on which | | | | to file a complaint with the South Carolina |
| the wrongdoing allegedly occurred. S.C. Code § | | | | Commission of Labor alleging such discrimination. The |
| 8-27-10(4). | | | | SC Labor Commissioner shall cause investigation to be |
| Pursuant to the Act, a reportable wrongdoing is any | | | | made as he or she deems appropriate, and, if the |
| action by a public body which results in substantial | | | | Commissioner determines that anti-discrimination |
| abuse, misuse, destruction, or loss of substantial | | | | provisions of Section 41-15-510 have been violated, |
| public funds or public resources, including allegations | | | | he must institute a law suit in the appropriate court |
| that a public employee has intentionally violated | | | | of common pleas against such discriminating person |
| federal or state statutory law or regulations or other | | | | or entity. In any such action, the court of common |
| political subdivision ordinances or regulations or a code | | | | pleas has injunctive authority to restrain such OSHA |
| of ethics, S.C. Code § 8-27-10(5). A violation which is | | | | anti-discrimination violations, as well as authority to |
| merely technical or of a de minimus nature is not a | | | | order all appropriate relief including rehiring or |
| "wrongdoing" under the Act. Id. | | | | reinstatement of employee to his or her former |
| Rewards for SC Whistleblowers | | | | position with back pay. S.C. Code § 41-15-520. Unlike |
| When a SC state employee blows the whistle on | | | | the Act, the OSHA whistleblower protections are |
| fraudulent or abusive acts or violations of federal, | | | | available to state government and private employees. |
| state or local laws, rules or regulations, and the | | | | Conclusion |
| protected report results in savings of public funds for | | | | South Carolina whistleblowers who are employed by |
| the state of South Carolina, the whistleblower is | | | | a South Carolina state government agency are |
| entitled to a reward or bounty under the Act. | | | | protected from adverse employment actions when |
| However, the reward is extremely limited. The | | | | they timely report violations of state or federal laws |
| provisions of the Act provide that a SC | | | | or regulations or other wrongdoing. South Carolina |
| whistleblower is entitled to the lesser of Two | | | | attorneys, lawyers and law firms who represent SC |
| Thousand Dollars ($2,000) or twenty-five percent | | | | state government whistleblowers need to know the |
| (25%) of the estimated money saved by the state | | | | protections afforded to these employees who are |
| in the first year of the whistleblowing employee's | | | | fired, demoted, suspended or otherwise subjected to |
| report. The South Carolina State Budget and Control | | | | an adverse action in reaction to a report of fraud or |
| Board determines the amount of the monetary | | | | other wrongdoing by a public agency or one of its |
| reward that is to be paid to the employee who is | | | | officers or employees. South Carolina whistleblower |
| eligible for the reward as a result of filing a protected | | | | attorneys, lawyers and law firms should review the |
| report. See S.C. Code § 8-27-20(B). This reward is | | | | administrative requirements necessary to invoke the |
| very meager when compared to the bounty | | | | protections of the state's anti-retaliation statute, the |
| provisions of the federal False Claims Act, 31 U.S.C. | | | | statutes of limitations, as well as the remedial |
| §§ 3729-3732 (the "FCA"). The FCA allows a qui | | | | provisions afforded to such SC state government |
| tam whistleblower or relator to receive up to 30% of | | | | whistleblowers, in order to properly advise such |
| the total amount of the government's recovery | | | | clients. So too, the employment attorney should be |
| against defendants who have made false and | | | | aware of the rights and remedies of both private and |
| fraudulent claims for payment to the United States. | | | | South Carolina government employees who blow the |
| Some recent federal FCA recoveries by the U.S. | | | | whistle of violations of state OSHA statutes, rules or |
| Department of Justice have exceeded $1 Billion | | | | regulations. |
| Dollars. | | | | © 2010 Joseph P. Griffith, Jr. |