As an employee, you have the right to file a complaint about workplace discrimination or harassment without fear of retaliation. Whistleblower retaliation is an illegal practice that has a chilling effect on employees’ ability to assert their right to a safe and fair workplace.
Unfortunately, the illegality of whistleblower retaliation isn’t enough to stop some employers from punishing employees who speak out. Retaliation can take many forms, including decreased hours, reduced responsibilities, denial of promotion, and even termination.
Proving whistleblower retaliation can be complex, but knowing your rights and the legal options can help you fight back against retaliatory practices. The whistleblower protection attorneys at Joseph & Norinsberg can build a compelling case proving you were the victim of punitive action for exercising your right to speak out about unfair and illegal practices.
What Is Whistleblower Retaliation?
Whistleblower retaliation refers to any adverse action an employer takes to penalize an employee for speaking out or taking action about workplace conditions. Employers may also threaten retaliatory action to prevent employees from ever filing workplace complaints, such as stating they will cut employees’ hours for reporting illegal conduct.
Retaliation is a broad term that covers many possible forms of punitive action. Examples of workplace retaliation include the following:
- Termination, whether in the form of layoffs or explicit firing
- Demotion or reduction of responsibilities
- Reduction in pay or hours
- Harassment or hostile work environment
- Negative performance reviews
What Do I Need To Prove Whistleblower Retaliation?
Proving whistleblower retaliation isn’t an easy process. Proving a whistleblower retaliation claim requires extensive evidence, preferably in multiple forms. It’s important to develop a thorough paper trail that clearly demonstrates you were subjected to an adverse work action for filing a complaint.
Forms of evidence you can use to prove a whistleblower retaliation complaint include the following.
Direct Evidence
Direct evidence is proof that explicitly proves the claim by supporting a fact being asserted. Some examples include the testimony of a co-worker who witnesses a colleague’s firing over a complaint or an email stating outright that a decrease in hours was due to an employee’s complaint.
Circumstantial Evidence
Circumstantial evidence can make it more difficult to establish a successful whistleblower retaliation claim, but it is often an important part of a successful case. Circumstantial evidence does not directly prove a fact in the way an explicit statement or document of a claim might. Rather, it requires the fact-finder to draw inferences to connect certain facts to reach a conclusion.
For example, circumstantial evidence might include an employee record with consistently positive performance reviews until immediately after the submission of a complaint, when the employee’s reviews suddenly worsen. The negative performance review might not state that the complaint was the cause of the punitive action, but a look at the complete record supports the inference that the employer’s treatment of the employee changed significantly after the complaint.
Witness Testimony
Witness testimony can provide either direct or circumstantial evidence. Generally, witness testimony might directly prove a specific fact, but it can also be used to sketch out a series of related facts that don’t directly prove a specific claim.
An example of witness testimony as direct evidence might include the statement, “I was in the office on Tuesday, March 3, and I heard our boss yelling at Jane for complaining about a hostile work environment.” This testimony directly supports the claim that the boss took adverse action against Jane for filing a complaint.
On the other hand, the following witness testimony provides circumstantial evidence:
"I worked closely with Jane, and her performance was always great. She mentioned on March 1 that she was being harassed and was going to complain. By March 14, she'd been fired because she 'wasn't succeeding in the role,' but that doesn't match up with my experience as her coworker."
This testimony doesn’t directly prove that Jane was fired due to her complaint. However, it strongly supports the conclusion that the timing was related and that the official reason for her firing was not truthful.
Documentation
Emails, performance records, text messages, severance documents, and other workplace records can all be used as documentation when building a whistleblower retaliation case.
Documentation can also provide either direct or circumstantial evidence. Suppose an email states, “If you wanted more hours, you shouldn’t have complained.” Such a statement proves an employee’s assertion that their supervisor cut their hours for filing a complaint. Meanwhile, a performance record with suddenly negative reviews correlating to when a complaint was filed could be used to demonstrate a retaliatory connection.
What Legal Rights Are Whistleblowers Entitled To?
New York state law officially forbids retaliation against whistleblowers in the workplace. New York Labor Law Section 740 provides that an employer may not take any retaliatory action against an employee for disclosing workplace practices that are illegal or harmful to public health. New York City municipal employees are also entitled to specific protections against whistleblower retaliation.
In most cases governed by Section 740, whistleblowers must make a good faith effort to notify their employers of the problematic conduct in good faith before reporting it elsewhere to be eligible for whistleblower protection. This notification gives the employer a reasonable opportunity to correct the issue. However, if the conduct is immediately dangerous to public health or the employee believes that reporting the conduct to the employer would result in the destruction of evidence or similar attempts to conceal illegal workplace practices, the good faith reporting provision does not apply. Talk to an attorney about your legal rights and options before filing a complaint to ensure you receive the whistleblower protection you are entitled to.
How Do I File a Whistleblower Retaliation Complaint?
The process for filing a whistleblower retaliation complaint differs depending on the type of retaliation asserted. Whistleblower retaliation complaints are handled by government agencies authorized to take punitive action against employers who punish employees for speaking out against unsafe or illegal working conditions.
Reporting Whistleblower Retaliation to OSHA
The United States Department of Labor’s Occupational Safety and Health Administration, commonly known as OSHA, manages a wide variety of whistleblower retaliation complaints through its Whistleblower Protection Program.
The Whistleblower Protection Program handles cases covered by over 20 whistleblower statutes, including the Affordable Care Act, the Anti-Money Laundering Act, and the Criminal Antitrust Anti-Retaliation Act.
You can file a complaint with OSHA online, by fax, mail, email, telephone, or in person at your local OSHA office. Submitting documented evidence with your claim is not required but is helpful to the investigator working on your case.
How Long Do I Have To Report Whistleblower Retaliation to OSHA?
Deadlines for filing a whistleblower complaint with OSHA vary depending on the law applicable to your case. For instance, the following deadlines apply for certain claims:
- 30 days to file a complaint related to environmental statutes such as the Toxic Substances Control Act
- 60 days to file a complaint related to the International Safe Container Act
- 90 days to file a complaint related to statutes such as the Anti-Money Laundering Act and the Asbestos Hazard Emergency Response Act
- 180 days to file a complaint related to statutes such as the Affordable Care Act and the Consumer Product Safety Improvement Act
Reporting Whistleblower Retaliation to the SEC
The United States Securities and Exchange Commission, or SEC, is responsible for handling whistleblower retaliation complaints related to employees who reported violations of federal securities laws or were subject to conduct intended to impede their ability to report such violations. If you reported your employer to the SEC for securities law violations and experienced retaliation, or if you were threatened about reporting or made unable to report due to your employer’s conduct, they may be subject to consequences from the SEC. Depending on the facts of your case, you may also be able to sue your employer in federal court for violations of SEC anti-retaliation laws.
You can submit a retaliation complaint to the SEC online or by faxing or mailing to the Office of the Whistleblower.
How Long Do I Have To Report Whistleblower Retaliation to the SEC?
Lawsuits under the SEC’s whistleblower protection rules must be brought within six years of the date the retaliation occurred and within three years of when the employer should have been aware of facts related to the retaliation suit. Rare exceptions increase the statute of limitations to a maximum of 10 years.
Reporting Whistleblower Retaliation to the EEOC
Whistleblower retaliation commonly occurs when an employee reports discriminatory workplace practices or other violations of equal employment opportunity laws. The United States Equal Employment Opportunity Commission, or the EEOC, enforces federal workplace discrimination laws and handles retaliation complaints.
EEOC retaliation complaints often come in conjunction with other retaliation complaints, such as complaints made to OSHA. Depending on the anti-discrimination statute involved, whistleblowers who experienced retaliation may be eligible to receive various types of compensation. You can submit a retaliation complaint to the EEOC online, by mail, in person at your local EEOC office, or over the telephone.
How Can an Employment Lawyer Help Me?
An employment lawyer will help you manage your whistleblower retaliation case from beginning to end. An employment lawyer can do the following:
- Provide an initial evaluation, determining and explaining your rights and legal options
- Investigate, gather evidence, and build a compelling case
- File your claims on time with the appropriate agencies
- Communicate with opposing parties
- File a whistleblower retaliation lawsuit
- Negotiate a full and fair settlement
- Represent you in court to secure fair compensation
Contact Joseph & Norinsberg for Your Employment Law Case
If you have experienced workplace retaliation after filing a complaint, you don’t have to suffer in silence. The New York City whistleblower retaliation attorneys at Joseph & Norinsberg are knowledgeable professionals with over 75 years of combined experience representing clients who have been victims of retaliatory action at work. We provide relentless, tenacious representation to help keep victims from falling through the cracks.
Call 212-227-5700 or contact us online today for your free legal consultation. Ofrecemos servicios en español.
