One of the reasons that employers feel comfortable with engaging in retaliation against whistleblowers is that they think they can get away with it.
Whistleblowing is when an employee within a company or organization reports illegal or unsafe conduct to the authorities. In many cases employees discover that their place of work is engaging in violations of anti-discrimination law, committing fraud, or utilizing dangerous and unsafe practices for their employees. Many employees choose to not speak out on these issues as they fear retaliation from their employer, but it is important to know that whistleblowing is a “protected activity”. Retaliation from your employer for whistleblowing is illegal.
Whistleblowers are protected from retaliation for disclosing information that the employee or applicant reasonably believes provides evidence of a violation of any law, rule, regulation, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
What Are Examples of Retaliation for Whistleblowing?
Retaliation is when an employer takes an adverse action against a whistleblower employee, in spite of the fact that it is a protected activity. Retaliation can even be considered prohibiting or discouraging employees from speaking up about illegal activity before any whistleblowing has actually occurred. Adverse actions can be subtle and they won’t always be easy to recognize or prove. Some common examples of retaliation for whistleblowing include:
- Firing or laying off
- Denying overtime or promotion
- Denying benefits
- Failing to hire or rehire
- Intimidation or harassment
- Making threats
- Reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings)
- Reducing or changing pay or hours
- More subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance
- Blacklisting (intentionally interfering with an employee’s ability to obtain future employment)
- Constructive discharge (quitting when an employer makes working conditions intolerable due to the employee’s protected activity)
- Reporting or threatening to report an employee to the police or immigration authorities
How Do You Deal With Retaliation for Whistleblowing?
One of the reasons that employers feel comfortable with engaging in retaliation against whistleblowers is that they think they can get away with it. In most cases, the burden of proof that retaliation has been used is entirely on the victim. If you find yourself in this situation as a whistleblower, you may want to work with an experienced attorney who has worked on whistleblower cases before. Some of the things you should look for as proof that retaliation occurred include:
- That you engaged in protected activity, such as reporting a violation, testifying as a witness, or some other action to help enforce the law (although if you suffered retaliation because the boss mistakenly fingered you as the whistleblower, you may still have a claim)
- That the employer knew or believed you took such protected activity
- That you suffered an adverse employment action
- That your protected activity caused the employer to take adverse action
In situations where there is no direct evidence of retaliation such as verbal or written confirmation, inference can also be used. For example:
- timing (how soon it occurred after the employer learned about the protected activity),
- animus (the boss getting mad at the protected activity),
- deviation from normal practices (people are not usually fired for this reason, or in this manner,
- changing explanations,
- a pattern of adverse actions against those who speak up, or
- the use of false evidence.