Blanchard & Walker Weekly

Topic of the Week  Whistleblowing and Retaliation

If you have information about your employer violating laws and regulations, or causing danger to public health and safety, you may feel obligated to report it. If you do so, you may be considered a whistleblower. There are many state and federal laws in place that protect whistleblowers from retaliation by their employers. Retaliation is when an employer takes adverse action against an employee for engaging in a protected activity, like whistleblowing. Retaliation may also include prohibiting or discouraging employees from engaging in protected activity. Oftentimes this adverse action deters others from exercising their right to report illegal happenings. 

1. Who is protected by whistleblower and retaliation laws?

Whistleblower and antiretaliation laws protect all employees who report illegal conduct of any employer, employment agency or labor organization. This includes applicants, current employees and former employees. These laws also protect employees regardless of their citizenship or work authorization status. Additionally, an employer cannot refuse to hire an applicant because they filed a retaliation complaint against their former employer. 

2. Can an employee go too far? Is some conduct not protected activity?

Yes. If you get into an argument with a supervisor about what is or is not legal on the job and you punch the supervisor, you are not protected from being fired.

Courts have recognized that protected activity may be associated with "impulsive behavior." Employees cannot be disciplined for protected activity so long as it is lawful and the character of the conduct is not indefensible in its context. If the employee's behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. So, it's important to keep your cool.

3. How do I prove that the protected activity caused an adverse or retaliatory action?

Causation can be proved either by direct evidence or by an inference.

Direct evidence is evidence that the employer was angered by the protected activity. If the employer announces that whoever calls the government will be fired, or warns employees against reporting violations, that is direct evidence of retaliation.

A worker may have a strong case even without any direct evidence. For example, if your boss runs into the office yelling about an anonymous employee that reported a violation of the law and that employee announces that they made the call and is fired on the spot, the timing and personal animus make the retaliation clear. 

Thought of the Week

"Whistleblowing is important for businesses because it’s a regulatory requirement: you have a legal obligation to implement whistleblower channels and to protect whistleblowers when they raise a report of fraud, corruption, or other misconduct."

–Matt Kelly | Gan Integrity

Weekly Comic by Jerry King

Weekly Comic by Jerry King

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    Benefits of Whistleblowing

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    2. It protects both the company and employees
    3. It minimizes risks and associated costs
    4. It prevents wrongdoing
    5. It encourages better communication and trust

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