Private Employee Whistleblowers – Who Is Covered?
There are two types of retaliation all employees are protected from by law: discrimination for reporting various violations of laws, rules, and regulations by your employer, called whistleblower retaliation, and retaliation for opposing discrimination, called discriminatory retaliation. This page discusses whistleblower retaliation. If you are interested in discriminatory retaliation, please click here.
While discrimination and discriminatory retaliation are covered under a very small group of three federal laws, whistleblower retaliation falls under dozens of laws, all with their own standards of proof, statutes of limitation, courts you can take them into, and types of damages available if you win. Any potential claim needs to be reviewed by a whistleblower retaliation lawyer as soon as possible so no deadlines are missed.
OSHA protects a wide variety of whistleblowers under its umbrella, but certainly not all of them. If you reported a violation of federal law to either your management or to another governing body who then started an investigation, if you merely participated in such an investigation in any way, or if you reported an accident that was due to violations of federal law, then you may be protected if the federal law you reported a violation of is covered by OSHA’s whistleblower protections. I encourage you to review OSHA’s list of statutes protected by OSHA to see if your whistleblowing disclosure is covered. If you don't fall under OSHA's list, then don't give up, because many other protections are available. A whistleblower retaliation lawyer will need to discuss them with you to make sure nothing is missed.
What Protections Do I Have?
First, you must determine if you have been subjected to retaliation that is covered by a whistleblower retaliation law. OSHA itself provides the following list:
“Firing or laying off, Blacklisting, Demoting, Denying overtime or promotion, Disciplining, Denial of benefits, Failure to hire or rehire, Intimidation, Making threats, Reassignment affecting prospects for promotion, [or] Reducing pay or hours.” Dept. of Labor.
Many other whistleblower retaliation laws cover similar types of personnel actions. This list is not intended to cover every possible personnel action, but should give you an idea of what types of actions will be covered.
When Do I Need to File?
Time limits vary wildly depending on what you blew the whistle on, from years to just 30 days. Each time limit should be calculated from the date the retaliatory act occurred, not the date you made your disclosure. These very quick deadlines make it critical to discuss your situation with a whistleblower retaliation lawyer as soon as anything happens to you.
How do I Prove Retaliation Occurred?
The final piece of the puzzle in a successful retaliation claim is almost always identical to discriminatory retaliation laws - to show that your management knew you participated in a protected activity and, because of that activity, took an adverse action against you. You must therefore show that management had knowledge of your disclosure and your disclosure happened close in time with the retaliatory acts you suffered. Direct evidence, such as e-mails linking the two events, is ideal. Of course, your employer leaving you a string of e-mails saying they are retaliating against you is rare, so federal law also allows for the use of circumstantial evidence to prove that, more likely than not, the adverse action occurred because of the protected activity. Since knowledge is usually easy to establish because you likely reported your protected disclosure directly to management or HR, the timing test is generally key - you want to show that what happened to you is within a few months of your protected disclosure or that you were given a series of escalating punishments that management concocted as an excuse for harsher discipline.
I recommend hiring a whistleblower retaliation attorney to help you as soon as possible. Most whistleblower retaliation claims begin with the governing Agency reviewing the claim before you go to court - and sometimes you don't even get the option to go into court, so making your case as strong as possible before the Agency is important. Even if you can go to court, the Agency's review process often includes a finding of whether the claim has merit or doesn't. If you are successful in convincing the Agency of the validity of your case, they may put pressure on your employer to offer you a settlement before you have to go into court. If you don't convince the Agency, a finding of no merit can make winning in court especially tough. Putting your best foot forward by having an attorney help you draft the legal language included in your complaint is therefore critical.
I recommend that anyone who thinks they have a potential whistleblower retaliation claim contact our team of whistleblower retaliation lawyers before filing their initial complaint to discuss their options, because getting out in front of the retaliation is almost invariably the best course of action.