Whistleblower Protection: An Overview of Your Rights if You Have Suffered Retaliation for Reporting Misconduct

Whistleblower claims can arise from many laws that apply to the private and public sectors. In addition to federal laws, many state and local governments provide whistleblower protections. The protections and remedies these laws offer vary greatly, and it is important to understand your rights if you believe you have been subject to retaliation. The attorneys at KCNF have experience in pursuing justice for victims of retaliation in the following areas:

  • Constitutional Protection/Freedom of Speech
  • Corporate/Financial/Manufacturing Whistleblower Protections
  • Environmental Whistleblowers
  • Nuclear Whistleblower Protections
  • Transportation/Airline Safety
  • Workplace Health and Safety
  • Federal Contractor Fraud
  • Federal Employee Whistleblower Protections
  • Labor Rights
  • Wrongful Discharge

Whistleblower Retaliation Protections in the Constitution

The First Amendment to the U.S. Constitution guarantees the rights to free speech, association and to petition for redress of grievances. On the job, however, those who speak out about illegal or unsafe practices sometimes encounter employers who do not value those freedoms.

The First Amendment applies directly to government officials, not private sector employers. Still, that is over 21 million American workers who are protected by the First Amendment.

Congressional Response to Protecting Whistleblowers from Retaliation

The U.S. Congress has gone beyond what the First Amendment requires and passed dozens of laws that protect workers for a wide variety of activities, including raising concerns about violations they see at work.

These "whistleblower" laws create an uneven web of protections.

Some recent laws create strong protections, with access to administrative remedies or jury trials. These laws protect workers in the food, trucking, consumer finance, Sarbanes-Oxley (SOX) compliance, auto safety and other industries. Other laws may have limitations about the procedures to follow or the remedies available. Non-federal workplace health and safety whistleblowers are protected by Section 11(c) of the OSH Act which requires them to file complaints within 30 days and gives them no right to a due process hearing. Some areas, such as pharmaceutical and health care workers, have no federal whistleblower protection designed for their industry.

Most federal employees are protected by the 2012 Whistleblower Protection Enhancement Act (WPEA). This update of the Whistleblower Protection Act (WPA) protects employees who raise concerns about illegality, gross waste, gross mismanagement, abuse of authority or dangers to the public safety and health. The WPEA enhances the protections available through the Office of Special Counsel (OSC), Merit Systems Protection Board (MSPB), and through federal courts.

The U.S. Department of Labor (DOL) Directorate of Whistleblower Protection Programs (DWPP) enforces 22 federal whistleblower laws protecting workers in environmental, transportation, finance and other areas. OSHA receives the initial complaints under these laws. The Affordable Care Act (ACA) also protects workers suffering lay-offs or reductions in hours because of concerns that they would qualify for federal assistance in getting health insurance. Some of the laws enforced through DOL protect both public and private sector employees, including federal employees.

State and Local Laws Prohibit Whistleblower Retaliation

In addition to federal statutes, most states and some local governments have passed measures to protect whistleblowers from retaliation. These whistleblower protections mirror federal whistleblowers laws to varying degrees, and the protection and remedies they afford vary greatly.

Whistleblower Rewards

When a whistleblower discovers misconduct or fraud, he or she may be eligible to participate in one or more whistleblower rewards programs by disclosing the misconduct to the appropriate government entity. These provisions entitle the whistleblower to a percentage of the government's recovery. These reward programs can offer an alternative or additional remedy, whether or not the whistleblower has suffered retaliation.

As with anti-retaliation provisions, whistleblower reward programs vary. While federal law is the primary vehicle for whistleblower reward claims, many state and three local governments also offer their own reward programs.

Whistleblower award provisions cover a wide-range of misconduct, including Medicare and Medicaid fraud, federal contractor fraud, securities and shareholder fraud, fraud on the government, bank fraud, IRS tax fraud, and commodities and futures fraud.

KCNF lawyers can prosecute whistleblower reward claims under the following programs:

  • False Claim Act Qui Tam Representation
  • SEC Whistleblower Representation
  • IRS Tax Whistleblower Representation
  • Bank Fraud Representation
  • CFTC Whistleblower Representation

What a Whistleblower Must Prove to Prevail

To prevail, whistleblowers generally need to show:

  • They engaged in protected activity, or the employer thought they did.
  • They suffered an adverse employment action, which can include harassment or a hostile work environment.
  • That the protected activity caused the employer to take the adverse action.
  • The amount of their damages and that they took reasonable efforts to mitigate their damages (such as by looking for another job).

Even if an employee has made a protected disclosure and was subjected to a personnel action because of the disclosure, the employer may avoid liability if it can show that it would have taken the same personnel action even if the disclosure had not been made. Whistleblowers can benefit from learning if they can tape record at work and how to properly handle employer documents they can access through the performance of their job duties. The law is still developing on the extent to which whistleblowers can use these documents to support their claims.

What a Whistleblower Can Recover

Many whistleblower protection laws provide for back pay for lost wages, reinstatement (or front pay for future lost wages), compensatory damages (including emotional distress), and litigation costs and attorney fees.

Some whistleblower protection laws provide for special damages and may provide a whistleblower with punitive damages.

Time Limits Apply to Whistleblower Laws

Most legal claims have time limits. Whistleblower laws have time limits ranging from 30 days to 3 years. Federal employees have no formal time limit for claims submitted to the Office of Special Counsel. Each whistleblower who suffers retaliation could benefit from an initial consultation that identifies the potential claims and the time limits for making those claims.

Employees Could Benefit from an Experienced Whistleblower Retaliation Attorney

Kalijarvi, Chuzi, Newman & Fitch has been at the forefront of litigating whistleblower claims and defining the scope of whistleblower laws for more than 40 years. Whistleblower protection and reward laws vary greatly and are often complex. If you believe that you have suffered retaliation or have information pertaining to fraud or misconduct, please call us to schedule a meeting to discuss your concerns. If you are out-of-town, we can schedule a telephone conference. Contact us now.