Whistleblower Protection

A whistleblower is any person who reports his or her employer for violating laws or regulations, or causing a danger to public health and safety.

The employer may choose to retaliate. However, there is a raft of state and federal laws that shield whistleblowers from retaliation by the employer. For example, antidiscrimination laws, health and safety laws, wage and hour protections, etc. All these laws forbid employers to retaliate against a person who engages in conduct that the law protects.

Protected activities are defined by the specific law which creates the employee protection. There are laws that only protect complaints to a specific agency. Some state laws include a play fair’ provision that requires employees to warn the employers of the wrongdoing first before proceeding with any other action. This is to allow the employer to correct the problem. The Civil Rights Act of 1964 protects employees who participate in proceedings to enforce the law as well as proceedings opposing unfair discrimination. Filing a grievance, refusing to perform illegal duties, contacting the media, or doing anything to subvert illegal actions warrants to be considered protected activity.

However, it is noteworthy that some conduct may fall outside the scope of protected activity. For example, if you proceed to punch your supervisor after an argument on what is legal or illegal on the job, then that action is not protected. The key consideration is whether the employee’s behavior has overstepped the bounds of protected conduct.

After whistleblowing, as already stated, the employer may take an adverse employment action against the employee. An adverse employment action is any action that costs the employee money, according to some courts. For example, discharges, demotions, as well as denials of overtime, benefits and promotions are wont to cost the employee money, and, thus, they qualify as adverse employment actions. Other laws view any form of discrimination in the workplace as constituting an adverse employment action.

The tricky part is where you need to prove that it is your participation in a protected activity that caused the adverse action. There are two ways you can prove that the adverse action is a result of the protected activity: direct evidence or inference. You may have direct evidence that your boss retaliated because you reported a violation, or you can infer from the conduct that the protected activity caused the retaliation. The onus is on the employer to prove that the action could have arisen even without the protected activity.