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Discrimination & Retaliation      

PROTECTING EMPLOYEES WHEN THEY ASSERT THEIR RIGHTS

     An employee has the right to refuse an employer’s instruction to perform work that violates the law. If the employer retaliates against the employee because of the refusal to do an unlawful act, the employee may file a whistleblower or retaliation claim.

     How can an employee know if the he or she has a whistleblower or retaliation claim? The following guidelines are helpful:

     1) The employee engaged in protected activity, such as reporting a violation, testifying as a witness, or some other action to help enforce the law. Protection can begin as soon as the evidence suggests that management thought the worker might be a witness in a future enforcement proceeding. Filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations of the law are protected.

     Employee complaints that are indirect or misdirected may be protected if they reveal to management the intention to enforce the law. For employees assigned to safety, quality control or enforcement work, doing that work well or refusing to do anything that undermines safety or quality is also protected.

     2) The employer knew or believed the employee engaged in such protected activity – Where the whistleblower has tried to be anonymous, it may be hard to prove the employer has knowledge of the protected activity. Still, some courts will use inferences to deduce who the employer may have suspected. Sometimes, the employer's investigation or interrogation of an employee who had the courage to speak up can reveal that the employer has knowledge of the protected activity.

     Some whistleblowers will announce their protected activities. If they disclose copies of evidence to an agency, they send a copy to the employer by certified mail. Certified mail has the advantage of creating a document that shows the date the employer received the item. If the retaliation occurs shortly after the whistleblowing then the timing alone may suggest that the employer's true motive was because of the whistleblowing.

     3) The employee suffered an adverse employment action – Any action that costs the worker money will be an adverse employment action. These include discharges, demotions, and denials of overtime, promotions, or benefits. Formal discipline is generally accepted as an adverse employment action. Courts are inconsistent on whether they will allow a remedy for a bad evaluation, denial of a transfer, changes in hours or work location, hostile remarks, denial of parking privileges, and other changes that do not reduce a worker's paycheck.

4) The employee’s protected activity caused the employer to take adverse action. – Causation can be proven either by direct evidence or by an inference. Direct evidence is evidence that the employer was mad at the protected activity. If a supervisor ranted about someone reporting a violation, that is direct evidence of the employer's intent against protected activity. Similarly, if the employer announces that whoever calls the government will be fired, or warns employees against reporting violations, that is direct evidence of retaliation.

     In some cases, causation is obvious. The boss runs into the office yelling about the employee who reported a violation of the law. An employee raises her hand and announces that she made the call. The boss fires her on the spot. The timing and the intent make the retaliation clear.

     If there is no direct evidence, unlawful retaliation can still be inferred from: timing (how soon it occurred after the employer learned about the protected activity); intent (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 or inconsistent explanations; a pattern of adverse actions against those who speak up; or the use of false/ fabricated evidence.

     Like most legal actions, there is a deadline to file a written complaint for a whistleblower or retaliation claim. Failure to comply with the time limits may bar even a meritorious claim. If an employee is uncertain about a potential claim, including whether it can still be made within the time deadline, it is smart to consult with an experienced and knowledgeable employment attorney to determine available options.

© Law Offices C. Joe Sayas, Jr.