When an employer does something that’s illegal or unsafe, including discrimination or neglecting to follow safety guidelines, an employee should report it. Often, though, employers retaliate against employees who make these types of claims, up to and including firing the employee who filed the claim.
If you have concerns that you’re a victim of whistleblower retaliation, here’s what you need to know.
What is whistleblower retaliation?
The term “whistleblower” is used to describe an employee who reports the illegal or dangerous operations of their employer to the proper authorities. If you’re an employee who has witnessed your employer violating laws or regulations (like OSHA regulations), or if you’ve witnessed acts that you believe violate public or personal safety, then you should report it. Once you do so, you may be considered a whistleblower.
Whistleblower retaliation is when an employer takes retaliatory acts against the employee who has complained about a violation of a law, rule or regulation, opposed unlawful activity, and meets the specific eligibility requirements under specific laws for whistleblower status.
Employers can retaliate in several ways, including:
- demoting you,
- cutting your pay,
- deliberately handing out negative evaluations,
- passing you up for a promotion, or
- firing or laying you off
Because the stakes are so high, many employees keep quiet and don’t report their employers. However, there are whistleblower retaliation laws in place to protect employees who file legitimate formal reports against their employers.
Whistleblower retaliation laws
There are several whistleblower retaliation laws in place for all types of industries. In fact, since the OSHA act was passed in 1970, Congress has passed 22 federal laws that protect whistleblowers from retaliation. Your retaliation lawyer will know exactly which ones to reference during your case, but here are several whistleblower retaliation laws you should know about.
Federal whistleblower retaliation laws include:
The Sarbanes-Oxley Act (SOX): Also known as the Corporate Responsibility Act, SOX was passed in 2002 to regulate financial practices and other corporations. Section 806 specifically protects employees of publicly traded companies who provide physical evidence of fraud internally or to the SEC. Section 1107 mandates that it’s a crime for any person (e.g. employer) to knowingly retaliate a whistleblower who discloses true information to a law enforcement officer regarding an alleged federal offense.
The Dodd-Frank Act: Passed after the 2008 financial crisis, this act protects against whistleblowers to provide information to the SEC in the form of initiating, testifying in, or assisting in SEC investigations or judicial action.
The False Claims Act and Defense Authorization Act (NDAA): Sections 827 and 828 protect employees of government contractors and grantees who are whistleblowers.
The Whistleblower Protection Act: This protects employees of the federal government who file a report stating their employer participated in one or more of the following:
- Illegal activities
- Gross mismanagement
- Abuse of authority
- Gross waste of funds
- Actions that put the public in danger
- Censorship that violates laws and/or will cause danger, abuse of power, or gross mismanagement
Energy Reorganization Act: This act protects employees who disclose information about nuclear safety or any violations of the Nuclear Regulatory Commission.
Surface Transportation Assistance Act: This act protects whistleblowers in the trucking industry who disclose information about commercial motor vehicle safety or who refuse to operate a vehicle due to the employee’s reasonable concerns that the vehicle is not properly secure or safe to operate.
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21): AIR 21 protects airline employees who disclose information about unsafe aviation practices or procedures.
Federal Railroad Safety Act: This act protects railroad company employees who report violations of federal railroad safety laws or who refuse to work because they had reasonable concerns that their working conditions were hazardous.
Consumer Product Safety Improvement Act (CPSC): Passed in 2008, this act protects employees who disclose information about safety concerns in consumer products.
National Transit Systems Security Act (NTSSA): This act protects employees who work in the public transportation sector who disclose information about hazardous safety and/or security conditions.
Food Safety Modernization Act (FSMA): Created by the FDA, this act imposes more strict standards about food safety and handling. It includes whistleblower protection for employees involved in the following food services:
State whistleblower retaliation laws:
Each state has its own set of whistleblower retaliation laws, which cover topics such as discrimination, harassment, wage laws, and workplace safety. Depending on the state you work in, you could be covered under state whistleblower retaliation laws no matter what type of employee you are. Some state laws, though, only protect public employees.
In Florida, public and private employees are both protected from whistleblower retaliation. An employee can sue for reinstatement and can be compensated for:
- back pay
- lost wages
- back and full benefits
- reduced or withheld bonuses
- reasonable costs
However, privately-employed workers who seek to be protected by the Florida Whistleblower’s Act must have disclosed, or threatened to disclose, an activity, policy or practice of an employer that is in violation of a law, rule or regulation.
Examples of whistleblower retaliation
Whistleblower retaliation can take place in many forms, but the main point of retaliation is to make it impossible, or nearly impossible, for an employee who reports their employer to the authorities to adequately perform their job. Employers can retaliate in these ways, among others:
- Reducing pay
- Passing you up for a promotion
- General harassment
- Firing you or forcing you to quit
- Shifting or changing your job responsibilities or title
- Giving a negative evaluation without cause
It can be difficult to tell or prove if an employer is retaliating. Shifting your job focus could be explained as a change in strategy, for instance. In general, changes an employer makes that adversely affect your job count as illegal retaliation.
How to prove whistleblower retaliation
If you believe your employer is retaliating against you because of a complaint you made, you might have a case for whistleblower retaliation. Your complaint can be as formal as presenting it to a governing agency, like OSHA, or as informal as bringing it up to your HR representative.
Proving employer retaliation can be difficult depending on the circumstances. You’ll have to demonstrate a direct link between your employer’s retaliatory actions and your formal complaint or report. Physical evidence is the best way to prove whistleblower retaliation.
Start collecting documents that can be presented as evidence of whistleblower retaliation. For instance, keep a running list of retaliatory behavior, noting the date and time of the behavior, what the behavior was, and how it negatively impacted you.
You should also find and keep historical documents of the retaliatory behavior as well as behavior prior to your complaint that can demonstrate a shift in your employer’s behavior toward you before and after your formal complaint. Having witnesses who saw the event you complained about and who have witnessed your employer retaliating against you can also be extremely helpful in winning a workplace retaliation lawsuit.
When to contact a workplace retaliation lawyer
Contact a workplace retaliation lawyer when you’re unable to demonstrate that your employer is retaliating against you or when you’ve suffered damages that are negatively impacting your daily life. If you’ve lost your job or lost wages because of workplace retaliation, a lawyer can help you prove retaliation and recover damages. Damages include lost wages (including stock options), lost health care benefits, and lost retirement benefits. Damages are awarded in cases where the lawyer can prove workplace retaliation.
Benefits of hiring a workplace retaliation lawyer
A workplace retaliation lawyer understands the ins and outs of how to win workplace retaliation cases. They know which laws protect you as an employee, and they can help you take your documents and present them in a way that will award you the compensation in damages you deserve. Every law has different stipulations for what activities are or are not protected, called “protected activity.” A workplace retaliation lawyer will be able to define your “protected activity” so you can win your case and collect your damages.
Frequently asked questions about whistleblower retaliation
What protects whistleblowers from retaliation?
There are several laws in place to protect whistleblowers from retaliation, as outlined above. These laws are in place because the government doesn’t want employees to stay quiet about things that impact the public’s health or safety out of fear of retaliation.
What do whistleblowers do?
Whistleblowers speak the truth when they see illegal or unsafe practices being carried out by their employer. They can speak out by making a formal complaint to a governing authority or by speaking to their HR manager. To be protected by whistleblower retaliation laws, whistleblowers must demonstrate that they genuinely believed the action they’re speaking against was illegal or unsafe at the time they filed their claim. Some whistleblower laws require that the activity complained of is an actual violation of a law, rule or regulation. You do not need to name the specific law when you complain.
What is retaliation in the workplace?
Retaliation in the workplace happens when employers act out against an employee who has made a claim against them. This can be a claim about discrimination (sexual, racial, or gender), unsafe practices, or other illegal activities. The employer retaliates directly or indirectly by giving that employee a different job description, demoting them, lowering their pay, or even firing them.
How do you prove retaliation at work?
Keeping documentation is the best way to prove retaliation at work. Note every time your employer does or says something that you think is retaliatory. Keep historical documents that can prove that your employer acted in a different manner before you made the claim. For instance, if you received a great review a month before filing a discrimination claim and then got demoted after you made that claim, you could have a good case for whistleblower retaliation.
Your next steps
If you believe you were the victim of Whistleblower retaliation in Florida, it’s important to contact an employee rights attorney to represent your case. At Wenzel Fenton Cabassa, P.A., we fight for fairness, justice, and equal rights in the workplace. Contact us today to schedule a free, confidential consultation. We have locations in Tampa, St. Petersburg, Sarasota, West Palm Beach, Miami, Orlando, and Jacksonville for your convenience.