< Library - Employment Law
Discrimination & Retaliation      

WHAT SHOULD I DO IF MY BOSS VIOLATES THE LAW?
(Protecting the Whistleblower)

A: No. Employees provide their time and services to the employer in exchange for a mutually agreed salary. However, employees have the right to refuse to perform certain work if the said conduct violates the law. Employees who lawfully exercise their rights, either by refusing to violate the law or reporting violations, are protected under our system.

     What is a Whistleblower?
     A whistleblower is usually an employee who discloses information to a government or law enforcement agency because the employee reasonably believes that there is a violation or non-compliance with a state or federal law. The applicable laws are usually those designed to protect the health and safety of the public. Some of these examples include environmental laws and industry regulations pertaining to airlines, trucking, public transportation, and health care.

     To encourage workers to report violations of these laws, a whistleblower statute was enacted. The law prohibits the employer in any way from preventing an employee to disclose information to government or law enforcement agency. Whistleblower complaints focus on conduct prohibited by a specific law or conduct that may cause damage to public safety, waste tax dollars, or violate public trust in an honest, accountable government. Whistleblower complaints are usually not about employer's retaliation for complaints about personal dislikes or issues that affect only a single person.

     If an employee reports a violation or noncompliance with a state or federal law and the employer subsequently fired, suspended, demoted or in some way mistreated the employee, the employer may additionally be held liable for retaliation. Although whistleblower and retaliation claims are often discussed interchangeably, and claims brought by whistleblowers generally involve retaliation by an employer, there is a difference between the two types of claims. A whistleblower claim will usually involve a retaliation claim, but not necessarily the other way around.

     The Law on Anti- Retaliation
     A retaliation claim usually arises when an employee suffers an adverse employment action such as a termination or demotion because of a valid exercise of an employment right. For example, an employer terminates an employee who filed an overtime claim with the Labor Board. In this instance, the employer “retaliated” against the employee for asserting a legal right. Hence, the employee can bring a retaliation claim to vindicate the right that was violated. The law protects those employees who assert their rights and blow the whistle on the violators.

     How the Law Protects the Employee
     Consider this recent court case of a wrongful termination based on retaliation:

     Teresa Green was employed as the Activities Director at Las Flores Convalescent Hospital. Green was terminated for alleged responsibility for the severe burn injuries of a patient. She allegedly failed to supervise when she was on a work errand off the premises. However, Green contended that she was terminated because she refused to lie (as instructed by her employer) to the State Department of Health Services investigating the patient’s accident.

     Green had previously protested the deteriorating patient care and safety under the new management. She had protested the harassment of her direct report for which she was punished. During trial, Green introduced evidence in court showing that employer suppressed or falsified evidence. The jury found for Green and awarded her a total of $2,474,172 in damages. The damages consisted of compensatory damages for lost earnings, emotional distress, attorneys’ fees, and punitive damages against the employer.

     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.