Common Law vs. TPPA Claims
The only substantive difference between the claims is the different causation standards applicable to claims under the TPPA and the common law. Under the common law, a plaintiff only needs to demonstrate that his protected activity was a substantial factor in his termination to prevail on a common law retaliatory discharge claim. In contrast under the TPPA, a plaintiff must establish that his protected activity was the sole cause of his termination to prevail. This difference in causation standard is a huge impediment to a successful lawsuit.
In nearly every common law retaliatory discharge case we have tried, there are jurors with questions about causation. “What does substantial mean?” “Is that 51% of the cause?” “Does it mean the firing wouldn’t have happened with out the reporting of illegal conduct?”
A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. The whistle blowing doesn’t have to be the only factor, just a contributing factor.
The bill that the General Assembly passed and the Governor will sign requires that all employees making a whistleblower claim under the common law to show that the speaking out against illegal activity was the sole reason for the discharge. This causation standard will be very difficult to meet because an employer can always come up with some other reason for firing the whistleblower.
