Blow to Public Employers: Georgia Supreme Court Expands State Whistleblower Law


By: Amanda Cash
Previously, Georgia’s whistleblower statute prohibited retaliation against public employees who complained or made disclosures about “fraud, waste, or abuse” in government operations or programs.  Based on this limited definition, public employers were able to defend against such retaliation claims if the complaint was about something other than fraud, waste, or abuse.
However, the Georgia Supreme Court’s recent opinion in Colon v. Fulton County changed all that.  The Supreme Court found that a 2005 amendment to whistleblower statute broadened the scope of its retaliation provisions.  The amended version prohibits retaliation against a public employee “for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.”  It does not mention “fraud, waste, or abuse” about government programs or operations, so, the Supreme Court determined that the statute can no longer be limited by that definition.
This ruling has a few significant implications for public employers.  First, it broadens the scope of potential retaliation claims since they are no longer limited to a narrow class of complaints about fraud, abuse, or waste of public funds; instead, employees are protected based on complaints about alleged violations of any law, rule, or regulation, so long as their beliefs are reasonable.  This could make the scope of covered complaints almost limitless.  For instance, it could cover complaints about sexual harassment, discrimination, assault and battery, and any other alleged violations of the law.  Furthermore, because the term “rule” is not defined in the statute, a public employee’s complaint about a “rule” in an employee handbook or standard operating procedure manual might qualify as protected activity.
Second, this holding may give public employees a way to bring retaliation claims based on complaints about sexual harassment and discrimination under state law, as opposed to bringing them under Title VII or other federal discrimination laws.  This is significant for public employers because it gives plaintiff’s lawyers a way to bring retaliation claims in state court that cannot be removed to federal court by the public employer.  Because federal court is typically a more favorable venue for employers for a variety of reasons, such as the increased likelihood of obtaining summary judgment, the potential impact is significant.
At this time, it is not clear exactly how Georgia courts will flesh out the contours of the whistleblower statute after this ruling.  Future decisions may narrow the scope of complaints that are protected under the statute, such as limiting them to complaints about alleged violations of state law, as opposed to federal law.  For now, however, it seems likely this is an area where public employers will see renewed interest by plaintiff’s lawyers.  Thus, public employers should be aware of this expanded protection under the Georgia whistleblower statute when making employment decisions.