Most whistleblower accounts start out the same. You are working for a company, anywhere from the mail room to an executive position, and you notice employment practices that aren’t quite right. Many employees might turn the other way, but you decide to raise it with someone. You may go to your supervisor or even to a federal agency to report the practices.
What comes next, however, can differ significantly on a case–by-case basis. That’s because there is usually a degree of uncertainty surrounding how an employer will respond once someone blows the whistle. Will the practice be addressed? Or will the whistleblower suffer employee retaliation?
What Does Workplace Retaliation Look Like?
Oftentimes, we assume that retaliation at work comes in one form: termination. This is understandable, as the fear of a losing a job is the reason many people do not come forward about potential fraud or illegal activity. However, a sophisticated supervisor may know that terminating you for blowing the whistle will inevitably lead to a retaliation claim and therefore will take some other action against you, such as demoting you or withholding benefits. Fortunately, many of the laws that protect workers from retaliation prohibit an employer from subjecting an employee to a wide breadth of actions in response to her whistleblowing activity.
What Do I Need to File a Whistleblower Claim?
To bring a whistleblower retaliation claim, you must show that you brought attention to potential fraud or illegal activity (known as “protected activity”), that your employer knew that you engaged in this protected activity, that your employer took an adverse action against you, and that the employer took this action because of the protected activity.
How Does the Law Protect Whistleblowers?
Once you have engaged in protected activity and your employer knows about it, you should start with the basic premise that any action taken by your employer that diminishes your role at the company could be retaliation. While many state common law wrongful discharge claims only afford employees protection against termination, most anti-retaliation laws provide remedies for any discrimination or adverse employment action.
Determining If You’ve Been Retaliated Against
Below are some questions to ask yourself to determine if the actions taken against you constitute retaliation:
- Is it costing you?
Being terminated from your job will almost certainly cost you money in the form of lost income during the period you are unemployed. However, denials of promotions and benefits or demotions or transfer can also cost you money. While courts and statutes are inconsistent about whether certain forms of formal discipline are retaliation, showing that these changes reduce your paycheck will generally help prove that they constitute actionable retaliation. For instance, while a retaliatory negative performance review by itself may not rise to level of an “adverse employment action,” if your annual bonus is based on positive reviews and feedback, that review could reduce your compensation for the year by a significant amount.
- Did your work environment change?
Often whistleblowers will notice a change in their work environment after they engage in protected activity. Employers may look for more subtle ways to apply pressure, perhaps in the hope that you will quit on your own accord. These methods can also constitute “adverse actions” sufficient to state a claim for retaliation. For instance, hostile remarks can make you feel isolated and chill others from engaging with you, or your supervisor may have gone silent on an upcoming promotion. Retaliation can be inferred not just from the form it takes but from its timing, evidence of related animus or shifting explanations.
- Is your employer affecting your ability to do or stay at your job?
Your employer may choose to retaliate against you by taking other actions to deter you from staying at your job or that affect your employment. This may include threats, increased surveillance or spreading negative information about you through the company.
One of the most widely discussed—and litigated—federal whistleblower statutes is the anti-retaliation provision of the Sarbanes-Oxley Act of 2002 (“SOX”) that protects certain whistleblowers who report corporate fraud and financial or securities-related wrongdoing. SOX has a broad prohibition on retaliation, making it unlawful for a covered employer to “discharge, demote, suspend, threaten, harass or in any other manner discriminate against an employee in the terms and conditions of employment.”
In determining whether an employer’s action meets this standard, the Supreme Court inBurlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) held that the determining factor is whether a reasonable worker would have been dissuaded from engaging in protected activity because of the employer’s actions. Accordingly, adverse actions include a wide spectrum of conduct, ranging from blacklisting to reduced responsibilities to departmental transfers.
Case law indicates a trend toward a broader interpretation of prohibited retaliation. For instance, an employee in one case was mentioned by name in an email to the finance and accounting team, where he was identified as the party responsible for starting an SEC investigation. After that, many of the employee’s colleagues refused to interact with him, greatly impinging on his ability to do his work. The Department of Labor determined that the company took an adverse action against the employee when it exposed his identity, potentially harming his future career prospects. [See Menendez v. Halliburton, Inc., ARB Nos. 09-002, -003, ALJ No. 2007-SOX-005 (DOL Admin. Rev. Bd. Sept. 13, 2011).] The DOL’s decision was later affirmed by the 5th Circuit in Halliburton, Inc. v. Administrative Review Bd., 771 F.3d 254 (5th Cir. 2014). Ultimately, courts have found persuasive that the law is meant to encourage internal reporting, and permitting employers to expose the identity of the reporter would undermine that purpose.
Under the law protecting whistleblowers in the aviation industry, AIR 21, the Administrative Review Board at the Department of Labor has stated that retaliation is any “unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged.” Williams v. American Airlines, Inc., ARB No. 09-018, ALJ No. 2007-AIR-004 (DOL Admin. Rev. Bd. Dec. 29, 2010).
Actions by your employer that constitute whistleblower retaliation may be hard to identify, particularly if you are unfamiliar with the specific statute that protects the form of whistleblowing in which you engaged. If you are uncertain whether the action your employer has taken is sufficient to form the basis for a whistleblower retaliation claim, the best course of action is to gather facts about the actions taken and speak with an attorney to provide you with an individualized assessment of your situation. Some states provide employees with additional whistleblower protections with varying definitions of “adverse actions,” and you may have a remedy available that addresses your situation.
