General Discussions

What Is Whistleblower Retaliation?

The following article is a guest post by R. Scott Oswald, managing principal at The Employment Law Group in Washington D.C. When corporations, executives, managers, or other employers skirt the law, the public counts on whistleblowers to sound the alarm. Unfortunately, whistleblowers sometimes pay a high price for doing the right thing. They might be targeted for retaliation by the companies they work for. Such retaliation can take the form of unfair treatment, harassment, or outright termination, among other things. Generally speaking, whistleblower relation is unlawful. In many cases, companies can be held accountable for taking revenge on an employee who has reported an illegal act, an unsafe working condition, financial mismanagement, or any other violation of ethics or law. A number of laws exist to protect whistleblowers and, in some cases, to reward them for coming forward and doing the right thing. Employees who suffer retaliation might also be able to recover compensation for the harm they’ve suffered. If you’ve “blown the whistle” on your employer and believe you’ve been targeted for retaliation as a result, you might be entitled to reinstatement to your previous position (or a promotion you were denied) and/or to financial compensation, among other remedies. That said, there is a lot to know about whistleblower retaliation and the process of making a claim. This article provides a basic overview, but anyone who has experienced retaliation should consult an experienced employment law attorney. Whistleblower Retaliation Whistleblower retaliation is the act of an employer punishing an employee for protected activity, such as reporting an injury, safety concern, mismanagement, abuse of authority, or legal violation in the workplace. Because whistleblowers provide our legal system a reliable means of discovering employment infractions and enforcing corporate accountability, our country’s laws are extremely protective of employees who are brave enough to do the right thing. Lawmakers and courts alike have generally recognized whistleblower retaliation as running counter to public policy; in many cases, it is specifically prohibited by statute. Examples of Whistleblower Retaliation In the classic example of whistleblower retaliation, an employee draws attention to wrongdoing by his or her employer and is then fired as a consequence. Retaliation isn’t always quite so obvious, however. It might be subtle or veiled by pretext. Virtually any form of unfair treatment or adverse employment action could constitute illegal retaliation if it is motivated by punishment. Examples of whistleblower retaliation can include:

• Termination (i.e. getting fired)

• Demotion

• Suspension

• Discrimination

• Harassment in the workplace

• Being subjected to a hostile or unsafe working environment

• Employment penalties or sanctions

• Denial of benefits, bonuses, or promotions

Laws Protecting Whistleblowers from Retaliation One of the most important federal protections for whistleblowers is found in the Sarbanes-Oxley Act of 2002 (SOX), which prohibits retaliation against a whistleblower acting in good faith, even if his or her report does not ultimately lead to a conviction or a finding of wrongdoing. In many cases, SOX protects employees who report fraud while working directly or indirectly for a publicly traded company. Another prominent protection is found in the Whistleblower Protection Act (WPA), which applies to federal employees and applicants for federal employment. Depending on the industry, the jurisdiction, the circumstances, and the nature of the employment, several other state and federal laws might apply to protect whistleblowers from retaliatory tactics. Examples include the Uniformed Services Employment and Reemployment Rights Act (USERRA, which protects eligible veterans and active duty service personnel), the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21, which protects qualifying employees of covered air carriers), and New Jersey’s Conscientious Employee Protection Act (CEPA, which protects “whistleblowing” employees in New Jersey as defined by that statute), among others. An experienced employment law attorney can talk with you about the specifics of your situation, which laws might apply, and any compensation you might be entitled to after suffering retaliation. How to Prove Whistleblower Retaliation (and Challenge Pretexts for Retaliation) Employers who retaliate against whistleblowers often claim to have a legitimate reason for firing, demoting, or otherwise penalizing the employee. Courts are well aware of this tendency, and whistleblowers are often successful in arguing that the purported justification is actually just a pretext for retaliation. Still, it isn’t enough to say, “I reported my boss, and then I got fired.” Generally speaking, an employee claiming retaliation will need to be able to show a causal link between the whistleblowing and the adverse employment action. Proof of retaliation might consist of direct evidence as to motive or, alternatively, indirect or circumstantial evidence that builds a compelling case. Indirect evidence might include (but is not limited to):

• Temporal proximity (i.e. proof that the hostile employment action happened soon after the whistleblowing)

• Eyewitness testimony

• Employment records suggesting retaliation

• Emails or memoranda from the employer

• Notes from internal reviews

• Other circumstantial evidence of whistleblower retaliation

Concerned About Retaliation? Unfairly Fired? Talk to an Experienced Lawyer. If you have already suffered retaliation — or if you are currently thinking about reporting your employer and are worried about the consequences — it’s a good idea to talk with an experienced employment law attorney right away. Employment law is complex. Every situation is unique, and different laws might apply in different scenarios. Mistakes are easy to make, but a lawyer can help you avoid them. Moreover, you could be entitled to statutory rewards, reinstatement to your old position, a promotion you were unfairly denied, or other remedies. A lawyer can help you understand your rights. It’s best not to wait too long. Statutes of limitation (i.e. time limits) apply to most retaliation claims. So don’t delay. Reach out to an experienced lawyer and get informed about your rights, options, and any obligations you might have.