What laws protect whistleblowers from retaliation?
The scope of whistleblower protections is varied depending on whom the whistleblower works for and in which state they are located. There are several provisions under the law that may provide protection to whistleblower activities, and a case may be covered under more than one whistleblower protection provision. The first step is to review the whistleblower claim to determine what statutes may offer protection or a remedy. In addition to explicit whistleblower protection laws, employees may also be protected under traditional tort or contract laws for damages as a result of retaliation for whistleblowing.
What whistleblower activities are protected?
The exact definition of protected whistleblower activity is a much-debated issue in whistleblower law. The underlying purpose of whistleblower protection laws is to allow employees to report or testify about employer actions that are illegal or violate specific public policies. However, some states have very narrow definitions while others have definitions that are very broad. The best way for an employee to know which whistleblower activities are protected by his or her state laws is to consult with an experienced whistleblower attorney.
Is there a statute of limitations on whistleblower claims?
Whistleblower cases have a short statute of limitations compared to many other types of cases that would be heard under tort law. Each state has its own statute of limitations for retaliation or wrongful termination actions, but the statute is usually considered to start from the time an employee learns that he or she will be retaliated against. Employees that wait until their last day of employment to file a claim will have failed to comply with the statute of limitations. Failure to comply with a statute of limitations is one of the favorite defenses in whistleblower cases. Federal statutes protecting whistleblowers also have their own statutes of limitations, some as short as 30 days.
What can a whistleblower do if they have been a victim of retaliation?
Depending on the whistleblower case, the employee may be eligible to file for a remedy under administrative and/or common law remedies. The decision on how to pursue the claim will determine what statute of limitations is applicable, the types of damages that are recoverable, and in what forum the claim will be adjudicated. If the employee is covered by a federal statute, some states may not allow the employee to bring a state action. Some employees have filed for both administrative and common law remedies; an approach which can raise additional issues. The safest way to weigh the pros and cons of each potential strategy is to consult with an experienced whistleblower attorney.
What is a “prima facie” case?
A basic “prima facie” case is one in which the plaintiff presents sufficient evidence of his or her claim to avoid dismissal of the case or avoid an unfavorable directed verdict. The term “prima facie” comes from the Latin and means “on first appearance”. In practice, this means that the plaintiff (the whistleblower) is required to produce actual evidence to support their claim. The burden of proof then transfers to the defendant. Most whistleblower claims will require proof of one or more of the following:
- that the plaintiff is an employee or person covered under the specific statutory or common law being used for the action;
- that the defendant is an employer or person covered under the specific statutory or common law being used for the action;
- that the plaintiff engaged in protected whistleblower activity;
- that the defendant knew or had knowledge that the plaintiff engaged in such whistleblower activity;
- that retaliation against the employee was motivated, at least in part, by the employee’s engaging in whistleblower protected activity;
- that the plaintiff was discharged or otherwise discriminated against with respect to his or her compensation, terms, conditions or privileges or employment; or suffered some other wrong actionable under state tort or contract theory;
- that the plaintiff can demonstrate, by a preponderance of the evidence, that he or she would not have been subject to discrimination or retaliation if they (the plaintiff) had not engaged in whistleblower activity.
What evidence can be used to prove retaliatory activity?
The following general categories of facts or circumstances are used to establish a reasonable inference that the discharge was discriminatory:
- the employer was hostile to the whistleblower when the matter under review was reported to them;
- the employer knew of the whistleblowing;
- nature of protected conduct;
- special conditions of employment following protected conduct and leading up to discharge;
- disparate treatment of discharged employee prior to protected conduct;
- previous expressions of satisfaction with work record;
- disparate treatment of similarly situated employees;
- termination procedure;
- timing of discharge;
- the employer made threats or retaliated against other employees for similar conduct.
Other factors that have been used successfully to establish circumstantial evidence of motive for discrimination and/or retaliation are:
- high work performance ratings prior to engaging in protected activity, and low ratings or “problems” thereafter;
- the manner in which the employee was informed of his or her transfer or termination;
- inadequate investigation of the charge against the employee;
- discipline, transfer, or termination shortly after employee engaged in protected activity;
- the magnitude of the alleged offense;
- an absence of previous complaints against employee;
- differences in the way complainant and other employees were treated;
- a determination that the employee was not guilty of violating work rule charged under;
- charges of “disloyalty” against an employee for engaging in protected activity