Whistleblowers, who are individuals who report a person or organization engaged in an allegedly illicit activity, are protected from workplace retaliation under a number of federal and state laws, including the Occupational Safety and Health Act (OSHA), Sarbanes-Oxley and Dodd-Frank, the Clean Air Act, the California Whistleblower Protection Act, and many others. In other words, an employee can file a legal claim against an employer for purported whistleblower retaliation under a number of state and/or federal laws. Does this mean that an employer’s hands are tied and, regardless of the employee’s performance down the road, the employer will be unable to fire him/her for fear of a potential lawsuit?
Not necessarily. If an employee decides to take legal action against an employer after s/he was demoted / terminated / etc…, the employee will still need to prove a causal link between his/her report of wrongdoing and the employer’s “adverse action” against him/her. This is more than “I reported and then was fired.” Not surprisingly, if handled properly, by the employer, such a causal link can be difficult to show.
Examples of retaliation
Common examples of how whistleblower employees are able to prove retaliation include:
· Illegitimate reason for termination
· A short time period between the reporting and the firing
· Failure to follow internal procedures for handling a whistleblower claim or when disciplining or terminating an employee
· Evidence of increased scrutiny of the employee by the employer
This list is not exhaustive. Be sure to speak with your legal counsel before taking any action after an employee reports allegedly unlawful activity at your place of work.
What’s an employer to do?
Ideally, if faced with a whistleblower retaliation claim, an employer will be able to clearly establish that the employee was not treated unfavorably after whistleblowing, that time passed between the whistleblowing and termination, that there is a legitimate business for the adverse action (this is clearly the most important factor) and that the employee who made the termination decision didn’t know about the whistleblowing. While meeting the last factor may not be possible given the reporting policies of your company, a business should strive to meet the first three (especially the third!).
For more information on how to handle a whistleblower claim, contact experienced business lawyer Drew E. Pomerance today.