A whistleblower is a person who reports a violation of the law, an unethical practice, mismanagement, corruption, waste of funds, or danger to public safety. Whistleblowers typically report these illegal situations to the powers-that-be at a company or to a governmental agency. The laws around whistleblowers and whistleblower retaliation can be complicated.
The Laws Protecting Against Whistleblower Retaliation
One of the most important whistleblower retaliation statutes is the False Claims Act. The False Claims Act contains an anti-retaliation provision that makes it illegal for employers to retaliate against employees who participate in or bring claims against their employers. Employees who successfully prove False Claims Act retaliation cases are entitled to reinstatement, up to two times the amount of their back pay, interest on that back pay, special damages, costs, and attorney’s fees.
In addition to the False Claims Act, there are a number of other federal and state laws, specific to certain industries that include provisions to protect whistleblowers from retaliation. These laws span many industries and have varying statute of limitations. You may be covered under one or more of these laws, which is why it is especially important to consult a lawyer when dealing with a whistleblower retaliation case. Some of the industry specific laws that include provisions protecting whistleblowers from retaliation include:
Federal Environmental Laws – Water Pollution Control Act (WPCA); Safe Drinking Water Act (SDWA); Toxic Substances Control Act (TSCA); Solid Waste Disposal Act (SWDA, also called RCRA); Clean Air Act; Energy Reorganization Act of 1974 (ERA); and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA or “Superfund Law”).
Corporate Fraud Laws – Sarbanes-Oxley and Dodd-Frank
Government Contractors – National Defense Authorization Act of 2013.
Energy – Atomic Energy Act of 1954 and Energy Reorganization Act of 1974
Federal Employees – Whistleblower Protection Act of 1989 (WPA) and Whistleblower Protection Enhancement Act of 2012.
What Constitutes Retaliation
Retaliation is any adverse action an employer takes against an employee as the result of them taking part in a protected activity. Examples include:
- Termination of employment (Getting fired!)
- Refusal to hire
- Reduction in salary
- Poor evaluations (It is important to note that negative comments in an otherwise positive or neutral job evaluation do not constitute retaliation)
- Negative references
- A change in a shift or job assignment
- Creates a hostile working environment
Commonly in whistleblower retaliation cases, the adverse action is termination.
How to Prove a Whistleblower Retaliation Case
In order to first establish a whistleblower claim you must prove three things:
- You engaged in a protected activity by alerting your employer or a government agency of wrongdoing
- Your employer knows about your protected activity
- As a result of the protected activity you suffered an adverse action, which is any kind of punishment designed to silence you
It is important to remember that whistleblower retaliation claims often have very short statute of limitations. In general, the statute starts when the employee learns he or she is being retaliated against, not at the last day of employment or last instance of retaliation.
Read about some recent whistleblower retaliation cases, including the New York whistleblower who received the highest possible award payment and the powerful admiral who violated whistleblower protection laws and then got promoted, here.
- The definition of a protected whistleblower activity is a debated topic and varies from state to state.
- Statute of limitations also vary from state to state and between state law and federal law, with some federal laws having statute of limitations as short as 30 days. Failure to comply with statute of limitations is one of the main reasons whistleblower retaliation claims fail.
- Employees working in the military or national securities agencies must meet a higher burden of proof than other federal employees.
- You may not have to be correct about your accusations when you blow the whistle to be covered. If a reasonable person would have believed wrongdoing occurred, you may be protected.
- You can also be covered under whistleblower protection laws for refusing to take part in an illegal action
If you have been fired or retaliated against in some way because you blew the whistle, it is very important that you consult with an attorney as soon as possible. Whistleblowing claims are one of the most complex areas of employment law, which means going it alone without the aid of an attorney, could severely hamper your odds of a successful outcome. While this article contains valuable information, it just scratches the surface when it comes to whistleblowing retaliation.
At Spiggle Law we can help you understand the nuances of the law as they apply to your case and should you decide to pursue a claim, will act as your advocates and advisors from the initial consultation to the final settlement. Contact us to learn more about our team and schedule a consultation.