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Do You Need a Whistleblower Retaliation Lawyer?

Do You Need a Whistleblower Retaliation Lawyer?

  • Have you suffered workplace retaliation because you stood up to wrongdoing?

  • Did you suddenly become a target after complaining about your employer's actions?
  • Have you been punished, demoted, or fired in an attempt to silence you?

Don't despair: Anti-retaliation laws may protect you.

For many decades now, federal and local legislators have understood that whistleblowers — employees who report wrongdoing — need strong legal protection. Why? Because workers who expose illegal behavior help *everyone* in society. If a whistleblower is punished for speaking up, society must step in and force the employer to make amends. That way, other honest employees will feel safe enough to do the right thing.

This is the logic behind whistleblower protection laws, also known as anti-retaliation laws.

Many federal statutes now forbid retaliation against whistleblowers by employers — practically any sort of employer, from railroad companies to nuclear power operators to the U.S. government itself. And in some states, the local laws are even stronger.

If you are a victim of workplace retaliation, our firm's whistleblower retaliation attorneys may be able to get your career back on track.

The Employment Law Group® law firm is experienced in representing whistleblowers in federal and state courts — and before every major administrative tribunal, including various arms of the U.S. Department of Labor, which enforces many of the nation’s laws against workplace retaliation. Our trial attorneys have broken new ground, winning the first jury verdict (more than $2.1 million) under new whistleblower protections introduced in the National Defense Authorization Act of 2013.

We represent employees in both the public sector and the private sector, and our cases have helped to expand the reach of whistleblower protection laws including the Sarbanes-Oxley Act and the Whistleblower Protection Act. Arguing for our clients, we have won opinions that establish job protection even for whistleblowers who may not be correct in their claims of wrongdoing — as long as they have a sincere and reasonable belief that they are reporting violations.

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Important statutes in this area of law:

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Different anti-retaliation laws offer different remedies, but a common goal is to make employees "whole" again — to return them to the state they'd have been in without the workplace retaliation. This often involves payment of money damages to compensate for lost wages and undue suffering, as well as reasonable attorney fees. Some statutes allow whistleblowers who have been fired or demoted to get their old job back. Some laws also authorize punitive damages to make an example of companies that have behaved especially badly.

As with all legal claims, deadlines are crucial. Some laws give you just 30 days to file a whistleblower retaliation complaint — so you must act quickly to determine which laws apply to your situation. Other statutes have time limits of 45, 60, 90, 180, or 300 days, or even longer under certain circumstances. A whistleblower retaliation attorney is your best guide to these deadlines; don't rely on guesswork. In general, the clock starts ticking when your employer notifies you of its intent to take an adverse action such as firing, demotion, or reassignment.

Frequently Asked Questions

Who is covered by whistleblower protection laws?

Most whistleblower laws forbid retaliation against employees who make good-faith reports of wrongdoing, either internally or to a government body, or who assist in investigations of such wrongdoing, subject to limitations set by each law. Most of these laws also protect employees who refuse to participate in wrongdoing.

There are two major types of federal anti-retaliation law: Laws that apply to whistleblowers in specific industries, and laws of broader applicability. As an example of the narrower type, more than a half-dozen laws — including the National Transit Systems Security Act — protect employees who blow the whistle on dangerous situations in the transportation industry. Similarly, whistleblowers who work for the federal government are protected by the Whistleblower Protection Act and other laws, and sometimes also by the First Amendment.

Broader whistleblower protection laws include the Sarbanes-Oxley Act, which prohibits retaliation against employees who report certain types of wrongdoing across a wide swath of corporate America, as well as anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, which forbids punishment of employees who blow the whistle on various types of illegal bias.

Some state laws, meanwhile, are broader still. New Jersey’s Conscientious Employee Protection Act is a good example: It forbids retaliation against any employee for reporting — or threatening to report — practically any type of wrongdoing.

In short, if you have been punished for blowing the whistle there is likely a law that covers your situation.

Who enforces whistleblower protection laws?

This varies from law to law. Via the Occupational Safety and Health Administration (OSHA), the U.S. Department of Labor enforces the anti-retaliation provisions of more than 20 federal statutes, including safety-oriented laws such as the Toxic Substances Control Act, which forbids punishment of employees who report violations involving industrial chemicals — but also including much broader laws such as the Sarbanes-Oxley Act. All these laws require an initial filing with OSHA, but may ultimately end up in federal court.

Other laws have different procedures: Federal employees who seek protection under the Whistleblower Protection Act, for example, may start at the Office of Special Counsel or the Merit Systems Protection Board; employees who invoke Title VII protection will start with the Equal Employment Opportunity Commission or, if they work for the government, with their EEO counselor. Still other laws allow direct filing of complaints with a federal or state court — this is an option if you’re punished for reporting violations of the Family and Medical Leave Act, for instance, or for opposing Medicare fraud covered by the False Claims Act.

State and local whistleblower protections, meanwhile, have a broad range of enforcement mechanisms. The common thread in almost all anti-retaliation laws, however, is that whistleblowers ultimately may rely on state or federal courts for justice, regardless of where they file their initial complaint.

What counts as whistleblowing?

In general, whistleblower protection laws forbid the punishment of what retaliation lawyers call “protected activity,” the definition of which may vary from law to law. Under a recent decision by the U.S. Supreme Court, for instance, the Dodd-Frank Act doesn’t protect internal reports of wrongdoing — employees must have filed a report with the U.S. Securities and Exchange Commission in order to be protected against retaliation. By contrast, internal reports are protected under the Sarbanes-Oxley Act and many other laws.

Most anti-retaliation laws are interpreted quite broadly, on the theory that companies shouldn’t do anything that tends to discourage future whistleblowing. Employees who report illegality usually will be protected, therefore, even if their reports turn out to be incorrect. Whistleblowers must act on a reasonable, good-faith belief of wrongdoing, however.

Here are some other factors that generally won’t disqualify a report from being “protected activity” — but check with a whistleblower retaliation attorney to be sure:

  • Not knowing the exact law that’s being broken. Courts don’t require employees to be legal experts — just to have a reasonable belief that something serious is amiss.
  • Not having pure motives. If you blew the whistle in part to get back at a workplace enemy, for instance, you probably are still protected against retaliation.
  • Violating your employer’s confidentiality rules. If you shared internal documents with a regulator or law enforcement agency as part of a whistleblower report, you probably are still protected — as long as you took only what was needed to support your claim, and you didn’t get the documents by nefarious means. You should consult an attorney, however, as your company may still try to sue you.
  • Whistleblowing as a duty. Even if it’s your job to report wrongdoing or unsafe conditions, your actions still may be protected if they result in workplace retaliation. One possible exception is for government employees, who may face a higher standard in certain circumstances.

What counts as whistleblower retaliation?

Most of an employer’s classic punishments for employees, including firing and demotion, are considered to be “adverse actions” and therefore potentially illegal under whistleblower protection laws. In order to prevail, an employee will need to prove additional elements — but generally speaking, an employer cannot take any action that would discourage future whistleblowers from speaking up.

Examples of likely adverse actions, in addition to the obvious, include denial of benefits; failure to promote; punitive transfers (or failures to transfer); reduction of pay; threats, harassment, or the creation of intolerable working conditions; denial of overtime; negative evaluations that are used as justification for subsequent negative actions; blacklisting; and lawsuits filed against employees or former employees.

How do I prove whistleblower retaliation?

In general, whistleblower retaliation attorneys aim to prove that their clients suffered an adverse action as a result of protected whistleblowing activity. The standard for proving this causation varies by law: In some cases, the whistleblowing activity need only be a “contributing factor,” while in other cases it must be a “but for” reason. Obviously, an employer must be aware of the whistleblowing in order to retaliate — but the actual person who retaliates need not know about it, depending on circumstances.

Sometimes an employer will be upfront about causation — a boss explicitly demoting an employee for being a “snitch,” for instance. More typically, there is strong circumstantial evidence, as when a whistleblower is fired shortly after filing a complaint about wrongdoing.

Employers often will claim that they took an adverse action for completely legitimate reasons, such as an employee’s history of poor performance. Depending on the causation standard, and the facts, this argument may be easy to overcome.

Which whistleblower protection laws are enforced by OSHA?

As noted above, OSHA administers the anti-retaliation provisions of more than 20 federal laws. The agency bundles them into three categories:

Occupational and environmental safety

Transportation industry

Consumer and investor protection

What other federal laws protect whistleblowers from workplace retaliation?

There are many, but here are 10 notable statutes that include (or have been interpreted to include) anti-retaliation provisions:

Do whistleblowers have any other protections against firing?

Absolutely. Besides state and even local anti-retaliation laws, which may be quite sweeping, whistleblowers in many states traditionally have been protected from termination by a common-law doctrine known as the “public policy exception” — an exception to the general rule that, in the absence of an agreement otherwise, employers can fire anyone for any reason.

The public-policy exception varies widely from state to state, and a few states don’t recognize it at all. In general, however, it means that courts may punish employers for firing whistleblowers who expose a wrongdoing that should be exposed for the public good — most especially if the employer has been violating a statute.

The rationale for this doctrine is the same as for whistleblower protection laws: Whistleblowing is a public good that we can’t allow to be chilled by intimidation. Its application may be limited, however, and generally applies only to outright firings.

Finally, if you seek employee protections, don’t forget unions: Membership has its privileges — and one of these privileges is an ability to hold employers to account.

What should I seek in a whistleblower retaliation attorney?

A track record of handling a wide variety of retaliation complaints, of course — including complaints that have gone all the way to trial and beyond. Prompt and clear answers to your questions, and an understanding of your concerns. But also a human connection: You will be represented in this dispute by your attorneys and their law firm, and you should feel good about having them on your side.

More Information on Whistleblower Retaliation:

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From the beginning I was impressed with the time and attention given to me from everyone at ELG. The communication and understanding from every department was substantial. The expertise and knowledge that you would expect at a firm like this is apparent and impressive. However the concern and genuine interest in me as an individual was not expected and quite moving.

June 3, 2012

Area of Law: Retaliation