The Court’s belief that DUI laws are adequate to enforce the public policy was clearly wrong: If the Court supports DUI laws so much, then drunk driving is so wrong and dangerous that preemption is more important than waiting for the police to discover the violation in progress driving down the street. Moreover, drunk drivers often escape detection long enough to end up crashing or compromising public safety in some other way. Obviously, having the police patrol the streets to be on the lookout for drunk drivers does NOT protect the public policy behind the DUI laws more than Cudney’s attempted preemption by reporting a superior’s drunken driving to his employer.

One thing you didn’t bring up is what the Court must have thought about the true reason Cudney was fired. It is obvious from the briefs submitted to the Court that Cudney was a stellar employee until he reported his superior’s drunk driving. Then suddenly, he was fired. The Court cannot deny that its ruling would be found attractive by fly-by-night “gangster-mentality” employers who would wish to do a favor for a long-time employee by firing anybody who blows the whistle on his or her dangerous illegal behavior. Since the Court cannot deny this implication, then it knew its ruling would hurt the innocent. The Court cannot complain if in the future employees in Cudney’s position choose to stay quiet about a superior’s illegal behavior. “Never snitch” is apparently more important than public safety. Protecting whistleblowing activity that potentially saved innocent lives is more important than the policies served by “at-will” employment.

However, the Court was nice enough to tip its hand just a little: it remarked that if Cudney had reported his superior to 911 or the police, then his superior’s future drunk driving episodes might have demonstrated that existing policy-safeguards were inadequate. If you are an employee who wishes to blow the whistle on a superior’s dangerous illegal activity, report him or her to the police in addition to any internal complaint you might make to your employer, then document that fact in your internal complaint. That way, when the defendant-friendly superior Court looks for ways to dismiss your lawsuit, yours will fulfill the special exception given by the Supreme Court in Alsco v. Cudney, so that you may then argue “your honor, Cudney is distinguishable…”

As to a civil suit, usually these are taken on what is called a “contingent fee basis”. This means the attorney puts forth the costs and takes no fee unless you prevail. Whether costs have to be reimbursed at the end of a case vary from state to state, and collection practices differ. I generally never try very hard to collect at the end of a case, because I see no need to make a bad situation (losing) worse through aggressive collection tactics.

If you give me a call, we can talk more on the matter, and I will see what I can do about moving the process forward.