A website of information for those considering blowing the whistle

Employer Retaliation

Office with desk WHAT WHISTLEBLOWERS SHOULD KNOW

In many cases, the people who decide to exercise their right to become whistleblowers and engage in a “protected activity” are current employees of the very organization accused of violating the law. This undoubtedly becomes an area of concern because workplace discrimination is a real and objectionable consequence. To combat this, the government has established whistleblower and anti-retaliation laws that offer protection both at the state and federal levels.

What is “protected activity”?

Every employee is entitled to engage in “protected activity”, that is, certain activities a worker can carry out without fear of retribution from an employer. In this instance, the protected activity can be providing information about fraud, contributing to an investigation, and testifying in court.

Are all laws the same?

The short answer is no. Employee protection laws can vary greatly and offer different degrees of statutory protection. For example, an employee may need to meet a specific requirement like notifying the employer of the alleged misconduct before filing an official complaint with a government agency to be protected (as is the case with the Sarbanes-Oxley Act of 2002), whereas other regulations may not impose such provisions.

The Civil Rights Act of 1964, commonly referred to as Title VII, is a federal law that distinguishes between the scope of protection afforded. It contains an “opposition” clause that extends cover to employees who lodge informal complaints as opposed to the “participation” clause that generally applies to those employees who bring formal charges against an employer. Another major distinction is the basis on which the unlawful discrimination claims are filed. The “opposition” clause requires that the claim or charge be made in good faith but the “participation” clause protects employees even if the allegations turn out to have no merit.

What is Employer Retaliation?

When a worker complains about discrimination or unsafe conditions and is adversely affected, especially monetarily, as a result, then there may be good grounds for legal recourse. While many people will put unfair dismissal in the retaliatory-action column, there are many other types of behaviors that constitute retaliation by an employer.

These can include (but are not limited to):

  • Demotion
  • Poor performance appraisals
  • Formal reprimands
  • Antagonistic remarks
  • Reduction in salary
  • Denial of overtime and similar benefits
  • Transfer to a less favorable post or department
  • Change in working hours or location
Forced to quit?

There are crafty employers who do not directly fire an employee but instead choose to strategically subject that employee to intolerable circumstances so that the individual is driven to resign. This is termed “constructive discharge” and various labor laws guard workers from such clandestine attempts.

Who can help?

Agencies like the Equal Employment Opportunity Commission (EEOC) and local Fair Employment Practices Agencies (FEPAs) offer protection and help provide remedies for workers who have been mistreated.

The wronged employee should take care to document the entire ordeal because when the matter progresses further, a connection must be established between the employer’s discriminatory actions and the adverse effects suffered.  

Conclusion

Employees who blow the whistle should not be made to endure any sort of harassment. If any person suspects an employer is being retaliatory, it is reasonable to first speak with the employer to seek a valid explanation but if one cannot be obtained then the matter can be efficiently dealt with by the EEOC or the respective FEPAs.

As laws for employee protection do not apply across the board, there will be a variation of procedures to follow to get relief. Hence, it is recommended to consult a legal professional in order to effectively handle the varied legislation on employment practices and whistleblower rights.

To seek help with workplace retaliation, or blow the whistle on suspected fraud, contact Jeffrey Newman Law today!

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