Retaliation and Whistleblower Claims

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.

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

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 will usually be protected, 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 may still be protected if they result in workplace retaliation. One possible exception is for government employees, who may face a higher standard in certain circumstances.

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.

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 the 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, such 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.

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

• Asbestos Hazard Emergency Response Act
• Clean Air Act
• Comprehensive Environmental Response, Compensation and Liability Act
• Energy Reorganization Act
• Federal Water Pollution Control Act
• Occupational Safety & Health Act
• Safe Drinking Water Act
• Solid Waste Disposal Act
• Toxic Substances Control Act

Transportation industry

• Federal Railroad Safety Act
• International Safe Container Act
• Moving Ahead for Progress in the 21st Century Act
• National Transit Systems Security Act
• Pipeline Safety Improvement Act
• Seaman’s Protection Act
• Surface Transportation Assistance Act
• Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, a.k.a. AIR21

Consumer and investor protection

• Consumer Product Safety Improvement Act
• Dodd-Frank Wall Street Reform and Consumer Protection Act
• Food Safety Modernization Act
• Patient Protection and Affordable Care Act
• Sarbanes-Oxley Act

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

• Age Discrimination in Employment Act
• Americans with Disabilities Act
• False Claims Act
• Family and Medical Leave Act
• National Defense Authorization Act of 2013
• Rehabilitation Act
• Section 1981 of the Civil Rights Act of 1866
• Title VII of the Civil Rights Act of 1964
• Uniformed Services Employment and Reemployment Rights Act
• Whistleblower Protection Act

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 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.

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.