Retaliation Against Workplace Whistleblowers

Retaliation Against Workplace Whistleblowers

Whistleblowing is increasing in frequency in the United States, as workers have become smarter about their rights and safety and more willing to speak up for themselves and their coworkers. But with the uptick in whistleblower reports has come a rise in retaliation against whistleblowers. Here’s what you need to know about workplace whistleblowing, types of retaliation, and how you can fight retaliation and stand up against employer wrongdoing.

What Is Whistleblowing?

Whistleblowing is the act of revealing information about your workplace that your employer would rather keep secret. These could be things that are illicit, illegal, unethical, fraudulent, or unsafe. Some examples include:

• Fire safety violations, such as keeping fire exits locked
• Failing to provide proper safety equipment or modifying equipment to remove protective parts
• Refusing to give employees required break time
• Not paying employees for hours they worked, including overtime
• Misclassifying employees as contractors
• Noncompliance with environmental regulations
• A workplace environment of discrimination or sexual harassment
• Taking bribes or kickbacks

Whistleblowing may go through many different channels, depending on the situation. For example, a worker may go to their manager, the head of their company, the HR department, the EAP division, or their union. Or they may speak with a state or federal government agency, like the California Division of Labor or OSHA (the Occupational Safety and Health Administration), or they might even say something to law enforcement. Unfortunately, some whistleblowers encounter a culture of corruption in the workplace or fear not being heard by officials and turn to the media to “blow the whistle” on things they feel are wrong.

Consumer advocate Ralph Nader coined the term “whistleblowing” in the 1970s as an alternative to negative words like “informant.” Since then, whistleblowing has been on the rise, especially during the recent pandemic, with many people rebelling against unsafe work conditions, long work hours, and improper employment status classification.

Depending on the nature of the information revealed, whistleblowing can be dangerous, and in the workplace, where whistleblowing most often occurs, it is usually followed by retaliation.

How Workplaces Retaliate Against Whistleblowers

Workplace retaliation can take many forms, from subtly hostile behavior to firing employees. Retaliation is designed to punish the whistleblower and discourage other employees from corroborating the whistleblower’s story or coming forward themselves.

The boss may try to force the employee to recant (take back) their report, not give statements to the press, or refuse to sit for a legal deposition or to testify in court. They may even attempt to remove the employee from the country if they are not citizens of the US and are working on a green card or another type of visa. Workers with no immigration status in the country (“undocumented workers”) are particularly vulnerable, as they may fear deportation without legal protection.

Common workplace retaliation may show up as:

• Threatening, intimidating or harassing the whistleblower or potential whistleblowers
• Changing an employee’s hours or reducing their pay
• Denying overtime or promotions
• Retracting or denying benefits
• Disciplining, such as inappropriate use of probation or suspension, more severely than other employees were disciplined for similar offenses
• Poor performance reviews, regardless of the employee’s actual execution of their job
• Demotion
• Marginalizing, ostracizing, or other forms of social isolation
• Reporting or threatening to report the employee to the police, immigration, or other law enforcement agencies
• Blacklisting (making it hard for the employee to work elsewhere) or threatening to blacklist (“You’ll never work in this industry again!”)
  
• Making work conditions so unbearable that the employee quits (also known as “constructive discharge”)
• Laying off or firing
  

What the Law Says About Whistleblower Retaliation

Despite what some employers want workers to believe, whistleblower retaliation against reporting protected issues is illegal at the federal level. What kinds of issues are protected?

• Agricultural work
• Consumer product and food safety
  
• Discrimination
• Employee safety
• Environmental protection
• Family and medical leave
• Fraud and financial issues
• Health insurance
• Lie detector testing
• Military status and obligations
• Mine hazards
• Mine inspections
  
• Minimum wage
• Overtime pay
• Transportation services
• Youth employment
  

There are five US agencies charged with protecting whistleblower complaints and enforcing anti-retaliation laws. They are:

• The Occupational Safety and Health Administration (OSHA)
• The Mine Safety and Health Administration (MSHA)
  
• The Office of Federal Contract Compliance Programs (OFCCP)
• The Wage and Hour Division (WHD)
  
• The Veterans’ Employment and Training Service (VETS)

Furthermore, there are state agencies that also protect whistleblowers and help fight retaliation. For example, if you work in California, the Division of Labor has a written code forbidding employers from retaliating against whistleblowers, and they have a hotline to report improper acts to the California State Attorney General’s office. An employer may be punished for retaliating against a whistleblowing worker, and they can be required to reinstate the employee or pay back lost wages, benefits, and the like.

Why Is It Difficult for Workers to Get Protection From Whistleblowing Retaliation?

Workers who believe they have experienced whistleblower retaliation are up against multiple hurdles, however. First, there is a lack of staff at government agencies to pursue complaints of wrongdoing and retaliation, especially since the surge in reports since 2020. It can take years for an agency to process a report and take action, leaving the worker without protection or their livelihood.

There are also issues with the codes governing violations and how they are handled by agencies like OSHA, which need to be updated with a more timely follow-up process.

Finally, workers need to prove that wrongdoing and retaliation took place, which can be challenging, especially if the retaliation was of the subtle social kind or if threats were verbal and not in writing. For instance, if you were fired in retaliation for reporting that your employer required you to take 30 minutes off your timecard but didn’t actually give you that time off for a lunch break, you have to prove you were fired for that (which would also constitute a wrongful termination) and not for some other cause. The larger the employer, the more resources they have to fight your claim and make it look like you were fired for poor performance or another reason. They may even begin writing you up for petty offenses to create a “paper trail” to justify your firing.

What Should You Do if You Believe You Have Experienced Workplace Retaliation for Whistleblowing?

Because of all these difficulties in reporting and proving retaliation, it’s wise to consult with an experienced attorney if you believe you have been the target of whistleblowing retaliation. A law office specializing in employment issues can help on multiple fronts because they know the law and the pitfalls you face, and they have the resources to work on your case.

At Employee Law Group, we have seasoned legal experts with a track record of success who can assist with your whistleblowing retaliation case. We can help you take the right steps to protect your rights while we help determine if you have the grounds to sue an employer or former employer. Also, we can help you determine if damages may be awarded for lost or unpaid wages, lost employment, out-of-pocket expenses, or pain and suffering for emotional or physical harm. In whistleblower cases, there are further possible damages related to bringing the employer’s wrongdoing to public light to protect others from future harm.

If you believe you have been targeted with retaliation for whistleblowing in California, the team at Employee Law Group would like the opportunity to speak with you at a free initial consultation. Call us today at 310-606-0065, or reach out online and let us know how we can help.