Speaking Up: Employee’s Guide to Whistleblower Retaliation
What is it and how to prove your case
Reporting wrongdoing is the right thing to do. But when whistleblower retaliation occurs, there can be severe consequences. Employees are protected from whistleblower retaliation under the law from managers, supervisors, and administrators that attempt to punish employees that report unlawful behavior.
Even though there are laws in place that protect employees from retaliation, it still happens in both the private and public sectors. Those in power decide to take action to protect their interests — ignoring the law and punishing employees through many different means.
What is Whistleblower Retaliation?
According to the United States Department of Labor, whistleblower retaliation “occurs when an employer fires an employee or takes any other type of adverse action against an employee for engaging in protected activity.”
This protected activity may include (depending on whether the employer is a public or private employer) the reporting of:
- illegal activity or suspected illegal activity, such as financial crimes,
- safety violations,
- business mismanagement,
- harassment or discrimination, or
- other unlawful actions
There are multiple adverse actions that an employer may take that could be classified as retaliation. Sometimes, they are apparent. Other activities may be more subtle. Here is a list of different types of retaliatory measures a manager, supervisor, or administrator may take against an employee:
- Firing or laying off
- Demoting or reassigning to a less desirable position
- Denying a promotion
- Denying overtime or benefits
- Reducing pay or hours
- Intimidation, harassment, or making threats
- Interfering with an employee’s ability to obtain future employment
- Constructive discharge
- Actions that are more subtle such as mocking, ostracizing, isolating, or falsely accusing the employee of poor performance in the workplace
Whistleblower retaliation can happen in many industries and across all levels of employment. Attorneys who specialize in employment law frequently work with employees who have experienced retaliation from an employer.
What Are the Laws Protecting Employees from Whistleblower Retaliation?
Federal and state laws serve to protect employees around the nation from retaliation. Did you know that since the OSHA Act was passed in 1970, Congress has passed 22 federal regulations to protect whistleblowers? Some of them are targeted at specific areas of work, including nuclear safety, the trucking industry, or aviation. There are also robust laws that serve as primary legislation for a wide range of private and public industries, including:
The Sarbanes-Oxley Act (SOX): passed in 2002, one of the most important whistleblower laws that protect employees from retaliation, regulates financial practices and other aspects of the business of publicly held corporations.
The Whistleblower Protection Act (WPA): protects employees of the federal government who file a report claiming such activities as illegal behavior, abuse of authority, gross mismanagement or waste of funds, actions that put the public in danger, or censorship that violates laws and/or will cause danger, gross mismanagement, or abuse of power.
The Florida Whistleblower’s Act is the state legislation that protects employees from retaliation. Florida law protects both public and private sector workers and covers such topics as workplace safety, harassment, discrimination, and wage laws. An important note: this legislation requires those in the private sector to have disclosed, or threatened to disclose, an activity, practice, or policy of an employer that is in violation of a law, regulation, or rule for that employee to be protected and written complaints to specified persons in the case of public sector violations.
Under the law, the employee can sue for reinstatement if they had been fired and can also seek compensation for lost wages, back pay, back and full benefits, withheld or reduced bonuses, reasonable costs, and damages.
How Do You Prove Whistleblower Retaliation?
If you believe you have been retailed against for reporting wrongdoing and decide to file a case against your employer, there are certain things to consider as you move forward with your employment lawyer. A causal link needs to be shown between the reporting and the subsequent adverse action that was taken by the employer.
There are many ways that this link can be proven. It can be through direct evidence or via indirect or circumstantial evidence of retaliation. An employment lawyer can guide you through what it takes to make a compelling case, but some examples of what could count as indirect or circumstantial evidence include emails or memos from the employer, notes/documentation from internal reviews, eyewitness testimony, various employment records that could indicate retaliation, or specific proof that the retaliation happened soon after the reported whistleblowing.
Whistleblowers serve an essential purpose of informing authorities when illegal, unsafe, or unjust actions are occurring in the workplace, which is why comprehensive legislation is in place. When whistleblower retaliation occurs, either in the private or the public sector, employees have the right to be protected — and organizations should be held accountable.