Are Whistleblowers Protected from Retaliation?
Yes! State and federal laws have strong whistleblower protection provisions. There are many different whistleblower laws, however, and many types of whistleblowers.
Generally, any law that promotes workplace safety, anti-fraud and corruption, wage and hours and anti-discrimination also has an anti-retaliation provision.
At MahanyLaw, we represent whistleblowers in False Claims Act, SEC and IRS whistleblower cases. These laws pay cash awards to whistleblowers for their information. Two of those programs, the False Claims Act and SEC Whistleblower Program, also have tough ant-retaliation provisions meaning it is illegal for your employer to fire, demote, or harass you for blowing the whistle on unlawful conduct.
We know that many violations go unreported because people are afraid of losing their job. Congress, judges and many state legislatures recognize this too. Our job is to not only insure that you receive the highest possible whistleblower award but also to protect your job and future.
I Wasn’t Fired but I Still Feel Like I Have Suffered Retaliation. Do I Have Any Rights?
Yes, you do have rights. Retaliation takes many forms. While termination (firing) is the most common form of retaliation, there are many other ways an employer can retaliate against an employee. Some companies demote or isolate suspected whistleblowers. Other may try to blacklist them, making future employment difficult and sending a strong message to others in the company. Still others can simply make your life miserable and your work environment hostile.
Instead of fixing problems and cleaning up illegal activity, some employers try to hide their greed and make workers suffer. Fortunately, workers still have remedies and are protected by most state and federal anti-retaliation laws.
Each situation is unique. Before you simply quit, talk to us first. Our job is to insure your rights are protected and insure that you receive the maximum possible whistleblower award and there are additional substantial damages for retaliation by firing, demoting, or harassing a whistleblowing employee.
What Do I Need to Show That I Suffered Retaliation for Being a Whistleblower?
There are slight variations in the various anti-retaliation laws but most have four basic elements.
First, you show that you were engaged in a protected activity such as being a whistleblower.
Next, you must show that your boss knew or believed you were a whistleblower. (Even if you weren’t the actual whistleblower, you may still be covered by the anti-retaliation laws if your boss thinks you were.)
You also must show that you suffered harm. While termination and demotion are the obvious harms, not getting promotions, not receiving merit raises or expected bonuses and being forced to quit (called “constructive discharge”) also qualify.
Finally, your participation in the protected activity (whistleblowing) must be the reason for the harm.
Let’s take a couple examples. Sally blows the whistle on an illegal Medicare fraud scheme at her workplace. She first tells her boss that the company is engaged in illegal activity and is immediately fired. Sally qualifies for protection under the False Claims Act anti-retaliation provisions and may also have additional protections under her state’s whistleblower laws.
Dave knows his employer is writing bad residential mortgages and is engaged in predatory lending. He files a False Claim Act case but tells no one at work. Days later he is demoted after being caught cheating on his time card. Although he clearly suffered harm, the harm isn’t related to his actions as a whistleblower. In fact, because False Claims Act cases are filed under seal and remain secret, unless the complaint was unsealed, it would be difficult to prove that his employer even knew he was a whistleblower.
What if my Employer Merely Suspects I am a Whistleblower, am I Protected?
This scenario happens frequently. Many employers have sophisticated IT departments that search employee emails looking to find employees who are copying and sending large amounts of sensitive data home. Others often suspect whistleblowing when an employee is constantly asking challenging illegal actions or refuses to perform tasks that he or she feels are improper.
Many companies try to fire these type workers before they can file a claim. That doesn’t mean they are not protected, however. Every case is different and some are harder to prove than others.
Although no one should ever lose their job for stepping up and taking a stand against fraud, the “ideal” retaliation case is when a boss loses his or her cool and tells the entire workplace that Sally was fired for “causing trouble” or “hurting the company.” Larger businesses have sophisticated human resource departments making these “smoking gun” cases relatively rare.
How Do I Prove that the Retaliation I Received Was Caused by my Whistleblowing?
As noted in the last question, causation can either be direct or indirect. Direct causation is rare but that doesn’t mean employers can escape liability for wrongful retaliation.
Indicators of indirect causation include the timing of the adverse action or harm, how others treat you, fabrications and trumped up charges, and by patterns.
Again, examples may be the best way to understand indirect causation. If you are fired days after complaining about illegal behavior, the reason is obvious even if the employer refuses to give you a reason. If you are suddenly ostracized from meetings or given impossible tasks and deadlines, it becomes obvious that you are being set up to fail. We have seen pattern cases where everyone who complains is mysteriously downsized a few months later.
Courts and juries can see through these ruses. Employers may try to hide their actions but the truth usually prevails. Our investigative team works with dismissed or harassed employees to build the strongest possible case to prove retaliatory firing.
How Long Do I Have to File a Retaliation Claim?
Every law is different and some laws give you a very short window for filing claims. If you are unsure what to do, call us immediately. As noted above, even if you do not have a viable whistleblower case, you may still be protected by anti-retaliation laws.
Is There Anything Else I Should Know?
Make sure download our 11 Step Guide to Whistleblowing and always call us before taking any actions at work. That means calling before you confront your boss, confide in co-workers or lose your cool.
We understand that it is difficult for hard-working, honest people to work in an atmosphere where greed and fraud are rewarded and whistleblowing is punished. By talking to us first, we can better protect your job and help you build a case.
Remember there are time limits for you to make a claim so connect with the employment retaliation experts and whistleblower lawyers at MahanyLaw to protect your rights: 202.800.9791.