Employer Retaliation Against Whistleblowers

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While it may be satisfying to complain about your boss, the truth is, complaining can and will get you fired. While most people think we have free speech in this country, there's no First Amendment in the private workplace. If you work for the government, you do have free speech rights, but they are limited. Sassing your boss or saying she's incompetent is not protected speech. If the company is violating the law - Medicare fraud, ripping off the government, failing to pay taxes, failing to pay wages, discriminating, polluting, etc., there are a host of whistleblower laws that may protect you. You need to find out which law protects you and make sure you complain in a way that's protected. Some laws require you complain in writing to a supervisor. Some say you have to report the company to a government agency. Some only require that you object to or refuse to participate in the illegal activity. If you get it wrong, you aren't protected from your employer's retaliation. Here are some examples of activities protected from retaliation.

Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?

Under many whistleblower laws, your objection may have to be in writing. But an objection to a breach of the employer's policies, or to an ethical violation, is generally not protected whistleblowing. While writing your long letter venting about every way the workplace is unprofessional may be satisfying, it can get you fired. The objection most likely has to be to an activity, policy or practice of the employer. If you object to a coworker stealing from the company, it's probably not protected. What would be protected is your objection to failure to pay overtime, discrimination based on a protected category (race, age, sex, religion, national origin, marital status, disability, color and, in a couple of counties, sexual orientation), safety violations governed by OSHA, or almost any other legal violation. Statutes, government regulations, and county/city ordinances would fall in this category. Even if the objection doesn't need to be in writing, I suggest you put it in writing so the employer can't deny you made the objection later.

Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?

If the employer asks you to do something actually illegal, whistleblower laws applying to your industry may say you can refuse and you are protected. It's a good idea to put your refusal in writing.

Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?

You may be protected if you have, in writing, brought the activity, policy, or practice to the attention of a supervisor or the employer and have given the employer a reasonable opportunity to correct the activity, policy, or practice. An example would be if you made a formal written complaint of sexual discrimination. The formal complaint would say that, if the situation is not promptly resolved, you intend to file a charge of discrimination with EEOC. You could invoke this provision after giving them time to fix the situation.

Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?

If you give information to the police, unemployment, EEOC, OSHA, a legislative body, or other entity actually doing an investigation of an illegal practice, you may well be a protected whistleblower.

The Whistleblower Laws

The remedies, requirements, and administrative hoops are the subject of entire treatises, so I'll just draw your attention to some of the major whistleblower laws. The federal whistleblower laws are: - The OSHA -enforced laws govern protection of workers against retaliation for complaining to employers, unions or the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, the environment, some public safety hazards, some securities fraud violations, - Sarbanes-Oxley is the most famous OSHA-enforced whistleblower law. It protects employees of publicly-traded corporations from retaliation for reporting violations of SEC rules and federal laws regarding fraud against shareholders. - The Whistleblower Protection Act protects Federal employee whistleblowers. - Military Whistleblower Protection Act protects whistleblowers in the U.S. military - False Claims Act (FCA), which enables a private citizen to file a lawsuit in on behalf of the U.S. Government for fraud by contractors and other businesses that use federal funds. Qui Tam prohibits an employer from retaliating against an employee for attempting to report fraud against Medicare, Medicaid, FDA, GSA, HUD, USDA, U.S. Postal Service, NIH and the military, but not the IRS.

States that have whistleblower protection laws

California, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maine, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Rhode Island, Tennessee, and Washington

States that offer whistleblower protection to government, but not private employees

Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, and Wisconsin.

Other Types Of Retaliation

Here are some examples of other types of complaints where the law protects you from retaliation.

Discrimination

If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, association with a person in one of these categories, or another category that's protected in your state/county/city (e.g., marital status or sexual orientation that aren't protected by federal law), then you have to follow your employer's published discrimination/harassment policy and report it.

Wage/overtime violations

If you're terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state's wage/hour laws.

Collective action to improve working conditions

The National Labor Relations Act protects employees from being retaliated against if they get together to try to improve the terms and conditions of their employment. So those letters employees sometimes do to complain against unfair treatment or bullying are supposed to be protected. The only problem is that most employers and management-side lawyers think this only applies to unionized workplaces (they're wrong) and so they usually don't hesitate to retaliate. Your remedies under this law aren't the easiest to get or the best, but it's something to hang your hat on and wave in front of the boss if they start threatening retaliation.

Deadlines/Statutes of Limitations

If you've been retaliated against, you may have short deadlines for bringing your complaint, and there may be some requirements you have to meet before you can sue. Here are some examples. - Sarbanes-Oxley: You must file a complaint with the U.S. Department of Labor within 90 days of the date you found out about the whistleblower discrimination, harassment or retaliation. - Other whistleblower claims: Statutes of limitations can be as short as 30 days for some whistleblowers protected under federal laws (e.g., environmental whistleblowers). State whistleblower laws vary, so be sure you know your deadlines. - Qui tam: Within the later of 6 years from the date of the violation; or 3 years after the government (or sometimes you) knows or should have known about the violation, but never longer than 10 years after the violation.

Tips on whistleblowing

  • If you're going to complain about legal wrongdoing or discrimination, I suggest putting it in writing even if the employer's policy says to have a meeting. You can present the written document at the meeting. That way you have proof that you complained about something that's protected. Otherwise, HR will almost always say you complained about general harassment or unfair treatment, which isn't protected.
  • If you complain, keep it professional and to the point. Avoid complaining about personality conflicts or incompetence. Stick to the facts that prove what's happening is illegal.
  • HR is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you're complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.
  • If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn't stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.
  • If, after you complain, the situation is not fixed, contact an employment attorney for advice.
  • If you're complaining about a boss or coworker embezzling, stealing, or doing something TO the company, as opposed to on behalf of the company, you're probably not protected from retaliation. You'd be surprised how many people get fired for reporting someone ripping off the company.

Additional Resources

Occupational Safety & Health Act (OSH Act), 29 USC § 660(c)

Surface Transportation Assistance Act (STAA), 49 USC § 31105

Asbestos Hazard Emergency Response Act (AHERA), 15 USC § 2651

International Safety Container Act (ISCA), 46 USC App. § 1506

Energy Reorganization Act of 1974 (ERA), 42 USC § 5851

Clean Air Act (CAA), 42 USC § 7622

Safe Drinking Water Act (SDWA), 42 USC § 300j-9(i)

Federal Water Pollution Control Act (FWPCA), 33 USC § 1367

Wendell H. Ford Aviation Investment and Reform Act (AIR21), 49 USC § 42121

Sarbanes-Oxley Act (SOA), 18 USC § 1514A

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