Where Do Warning Letters Fall on the Scale of Adverse Action?…Somewhere Beyond a Glaring Stare and Before Termination?

Hypothetical, based upon a real fact pattern: Henry engages in protected whistleblower activity--often. He even refers to himself as “Henry the Whistleblower” in his company email signature. The company has been careful to conduct thorough investigations of his numerous and varied complaints with discretion, despite Henry’s frequently obtrusive behavior. Though he is somehow managing to complete his assigned job responsibilities, Henry is frequently late or absent from work. He tells co-workers that he is working from home on a blog about the company’s illegal activities. While the company has a flexible policy regarding remote work, the policy also states that employees are generally expected to be present and working in the office from 9am to 5pm. Arrangements for remote work may be made, subject to supervisor approval. Henry’s supervisor frequently grants employees permission to work from home. Henry sometimes asks permission to do so, but not every time. His supervisor has not yet denied a request to work remotely from Henry. Henry’s behavior—both in his self-proclaimed whistleblower role and his frequent lateness and absenteeism—is causing a morale issue in his department. The company is drafting a warning letter to Henry regarding this attendance, but wonders if this will be considered an adverse action and invite a claim from Henry. Is a warning letter considered adverse action in the whistleblower context?

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