Why Retaliation Against Whistleblowers Is Illegal

by Jeanetta on February 7, 2013

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Why Retaliation Against Whistleblowers is Illegal

There is no overarching statutory legal prohibition of retaliation against whistleblowers in the United States. As a result, some employers may erroneously believe that they have the right to retaliate against employees who notify authorities of their unlawful activities. However, the intricacies of employment law mean that many employers who retaliate against them may violate some other law.

Specific Protections

While there is no overall right to avoid retaliation from these activities, certain specified statutes contain protections for those who alert authorities to the type of activity proscribed by that statute. The Occupational Safety and Health Administration operates the Whistleblower Protection Program. Under this program, whistleblowers who suffer retaliation may lodge a complaint against their employers.

Employers face steep fines for violating employee’s protection statutes. These protections only apply for workers in certain industries. Depending upon the statute, workers in the transportation, aviation, and consumer product industries may be protected. Explicit protections for those who inform the government, also apply to workers who disclose criminal activity involving the environment, fraud against the government, and white-collar criminal acts. Protected acts normally include providing information or assisting the government with any investigation.

Retaliation encompasses a variety of potential acts. Terminating the employee is an obvious form of retaliation. However, retaliation can come in the form of intimidation, reassignment, pay reductions, demotions, denial of overtime or benefits, or threatening the employee with anything should they come forward. In essence, employers should not try to play word games with respect to the definition of “retaliate,” as trying to categorize retributive actions as anything but will not go over well with the Occupational Safety and Health Administration.

Creating a Hostile Work Environment

If the employee is not covered by explicit statutory protections, retaliation may appear to be legal. However, wrongful termination lawsuits can be expensive and require copious amounts of documentation to avoid. When an employer dislikes an employee, employers will often get the idea to force the employee to resign; in theory, this frees them from the prospect of a lawsuit and in some cases ensures that the employee does not receive unemployment benefits.

Unfortunately, retaliation against an employee that does not involve directly terminating their employment can result in a hostile work environment. A hostile work environment can result in a wrongful termination lawsuit if and when the employee resigns. This does not mean that the employer must be polite or even reasonably civil to the employee; to create a hostile work environment, the conduct must be sufficiently pervasive to alter the conditions of the worker’s employment environment. Alternatively, the employer’s retaliation may constitute a hostile work environment if it results in a tangible change to the worker’s employment, such as in the case of demotion or pay cut.

The caveat is that the harassment must be based upon legally protected characteristics, such as race, sex, age, disability, or various other attributes.  However, workplace retaliation for blowing the whistle on unlawful conduct will usually involve poor documentation. As a result, if an employee happens to be a member of a protected class, he or she will have a much easier time “proving” allegations that the dismissal was due to a protected attribute, regardless of whether the underlying claim is actually true.

Unfortunately, employees who do not have explicit statutory protections or fall into any sort of protected class have little protection against retaliation. Even protected employees do not instantly have a claim just because their boss decides to be more antagonistic when dealing with them at the office. However, given the various benefits to maintaining a friendly and professional environment and the potential legal pitfalls for those who would freely retaliate against their subordinates, it may be better to avoid retaliation altogether.

Jeanetta Champion, a freelance writer, looking to inform whistleblowers of the possible subtle events that may equate to employee retaliation against them.  The laws for informing the government often provide a financial reward, and protection to those who do.  Goldberg Kohn Ltd, law firm can help one with these laws to stop fraud, help maximize your rewards for coming forward.
Photo Credit: http://www.flickr.com/photos/aesedepece/8176804808/




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