Whistleblower Retaliation
You might have heard about whistleblowers in the news lately, as this is a hot topic in the political world. But whistleblowing is also very relevant in the US workplace, and sadly, whistleblower retaliation is a major problem. Here are the answers to the most common questions we get about whistleblowing and what you can do if you are a target of whistleblower retaliation in California, including partnering with an employment attorney.
What Is Whistleblowing?
Whistleblowing is the act of exposing your employer for bad work conditions that they would prefer to keep secret. This includes things like:
- Unsafe work environment (malfunctioning equipment, poor fire safety, exposure to hazardous materials, lack of ergonomics for repetitive use injuries, etc.)
- OSHA or state violations regarding paid work time (not given breaks, wage theft, etc.)
- Failure to comply with industry-specific government regulations
- Accepting kickbacks or bribes
- Misclassification of employees as independent contractors
- Discrimination or harassment in the workplace
- Other involvement in illegal acts
Usually, the things that a worker exposes through whistleblowing violate some type of federal and/or state law. The term was coined by consumer advocate Ralph Nader back in the 1970s to conjure the image of someone “blowing the whistle” like a referee on dangerous workplace practices.
A typical whistleblowing case might go something like the following:
- An employee notices that factory equipment is unsafe.
- The employee talks to management or HR about the issue, only to be told not to worry about it.
- Soon after, another employee is injured by the unsafe factory equipment.
- The first employee goes to the EAP department next to again voice their concern about unsafe work conditions, but the EAP representative tells them to keep it to themselves. (The EAP division may be complicit in workplace violations or may have been threatened by their superiors.)
- Fearing more people will be injured on the job, and having tried all avenues to stop dangerous work conditions, the employee then goes to their union, the state Division of Labor, or perhaps even the news media to expose the employer. They might try to picket the workplace as well, in order to call the public's attention to the concern.
- The employer feels threatened by the possibility of citations, fines, lawsuits, damage to the company’s reputation, or loss of sales.
What Is Whistleblower Retaliation?
In the hypothetical scenario described above, when the employer feels threatened, they may retaliate against the worker for blowing the whistle on their unsafe work environment. This may be intended to punish the worker or to get them to recant (take back) their initial complaints. But typically, whistleblower retaliation is also intended to keep other workers “in line” by showing what could happen to them if they too speak up. If these sound like mafia tactics, you’re right – that’s exactly what they are!
What Are Some Examples of Whistleblower Retaliation?
Whistleblower retaliation can take multiple forms, and employers don’t always limit themselves to just one type of revenge. They may inflict several kinds of retaliation simultaneously. Examples include:
- Wrongful termination (firing without cause)
- Threatening, intimidating, or harassing the employee or their family members
- Changing the worker’s hours or cutting their pay
- Failing to pay wages, overtime, bonuses, or commission
- Denying rightful time off
- Retracting or reducing benefits, like health insurance
- Demoting or changing work tasks to fall outside the job description
- Refusing transfers or promotions
- Giving false poor performance reviews
- Putting the employee on probation, suspension, or PIP
- Practicing discrimination or harassment
- Leaving the employee out of training or social events
- Threatening to report the employee to immigration or law enforcement
- Blacklisting the worker so they can’t find another job in their industry
Sometimes employers are sneaky in their retaliation and do what’s called “constructive discharge” or “managing someone out.” This means making work conditions so miserable that the employee quits voluntarily.
Is Retaliating Against Whistleblowers Illegal in California?
Whistleblower retaliation is against the law in California and elsewhere in the United States. The federal agencies charged with protecting whistleblowers, depending on their job and military history, include:
- 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)
Many types of work and workplace practices are protected by these groups, meaning it is illegal for employers to retaliate against someone exposing things like:
- Unsafe work conditions in agriculture, manufacturing, transportation, and mining
- Other types of dangerous environments, like working around chemicals or without proper safety gear
- Violations of consumer and food safety laws
- Perpetrating fraud or financial crimes
- Employing children illegally
- Failing to adhere to environmental protection regulations
- Improper inspection procedures
- Workplace harassment or discrimination, including in hiring
- Refusing to pay earned wages, overtime, commission, or bonuses
- Failing to provide adequate meal times or breaks
- Falsifying time cards or other work records
In California, the state Division of Labor and the Attorney General’s office handle complaints about whistleblower retaliation.
What Steps Should You Take If You Are a Victim of Whistleblower Retaliation?
If you believe you have been targeted by whistleblower retaliation, there are several things you can do:
- Document everything as much as possible, so you have written records of what happened. Don’t rely on having access to work computers or files, though, in case you are let go suddenly.
- Speak with other workers who have experienced similar issues, but only if you feel it is safe to do so.
- Talk to your union, if you are a member of one.
- File an official complaint with the appropriate state or federal agency.
- Consult with an employment attorney.
Why Is It Best to Consult an Employment Lawyer for Whistleblower Cases?
By the time you get to number 4 on the list above, you probably want to speak with an experienced employment attorney. First, you want to ensure that any complaints you file have the greatest chance of success in being investigated. You want to be certain that the paperwork is complete and that you are working with the right agency. Many of these agencies are overwhelmed with reports and slow to investigate. An attorney can follow up for you or even initiate a lawsuit if you have the right kind of case.
Additionally, whistleblower retaliation cases usually involve multiple workplace violations, like wage theft, failure to pay minimum wage, or discrimination, which prompted the whistleblowing in the first place. As well as pursuing a retaliation case, you may be entitled to back wages or other damages. An employment lawyer can ensure you get what’s due and stop the employer from cheating other workers. It doesn’t matter what your immigration status is if your worker rights have been violated in California.
Have you been the target of whistleblower retaliation? Employee Law Group would like to help with your case. We can assist with filing state or federal complaints or take the matter to court, so your rights are protected. It’s free to find out if you have a case. For a complimentary consultation call Employee Law Group at 310-407-7358, or contact us online to tell us about your situation.
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