Most employees hope and expect to work for an employer that is moral, just, and follows the rules. But what happens if you discover that your employer is violating laws or regulations? Or if you learn the workplace practices or products are causing danger to public health and safety? If you have observed any such violation, there are probably lots of thoughts swirling through your head. One of them, to be sure, is whether you should expose your employer’s (or your coworker’s) unlawful conduct, and what will happen to your job if you do.
An employee who reports his or her employer’s unlawful conduct is known as a whistleblower. Both federal and state laws prohibit employers from retaliating against employees who blow the proverbial whistle. But the way in which a whistleblower must assert his or her rights can be complicated. Read this page to get general information about what it means to “blow the whistle,” what employer actions are considered retaliation, and how anti-retaliation laws can protect you when you do the right thing by reporting wrongdoing.
What are whistleblower and anti-retaliation laws?
Many violations of the law and many dangers to public health and safety go unreported because employees who know about them are afraid of retaliation after they speak out. This is understandable, because our livelihoods are dependent on our jobs. The purpose of the laws that protect whistleblowers from retaliation is to encourage employees to come forward with evidence that will make our world safer, healthier, and more just.
Often, the laws that protect workers—such as anti-discrimination laws, wage and hour protections, and health and safety laws—also make it illegal for an employer to retaliate against someone who speaks out for the public good. The same goes for the myriad laws protecting the public at large, including environmental laws; taxpayer-funded programs; and government regulation of certain industries, such as nuclear power, trucking, and airlines. Because of these legal protections against retaliation, employees should feel empowered to disclose information they reasonably believe is evidence of illegality, gross waste or fraud, gross mismanagement, abuse of power, or a substantial and specific danger to public health and safety.
How can I know whether I will be protected if I blow the whistle?
With some variations, whistleblower anti-retaliation laws extend to the employee actions or content of speech is “protected” and that the employer subjected the employee to an adverse action as a result. It can be difficult to figure out what is protected under the law. This is because the scope of protected activity is defined by each law that creates an employee protection.
For example, under the Civil Rights Act of 1964 (also known as Title VII), employees are protected for (1) participating in proceedings to enforce the law, and (2) opposing unlawful discrimination. The “participation” clause protects anyone who files a charge of unlawful discrimination or serves as a witness, whether or not the charge had merit. The “opposition” clause, however, requires that the employee have an objectively reasonable, good faith basis to believe that a law was violated.
Protection can begin as soon as the evidence suggests that management thought the worker might be a witness in a future enforcement proceeding. Filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations of the law can be protected. Even complaints that are indirect or misdirected may result in protection if they reveal to management the intention to enforce the law.
Can an employee go too far: Is some conduct not protected activity?
Yes. An employee is not protected if the speech is merely a workplace disagreement. When the employee is protected, she cannot be disciplined for her lawful, protected activity.
What if my employer doesn’t know I am involved in protected activity?
It may be hard to prove the employer has knowledge of the protected activity, especially when the complaint is made anonymously. Based on the surrounding circumstances, it may be possible to discern the employer’s retaliatory motives. If you were among a select few who had the necessary information and the courage to speak up, that might be enough for a judge to “infer” employer knowledge. Sometimes, the employer’s investigation or interrogation of an employee reveals the employer’s knowledge of the protected activity.
To avoid this problem, some whistleblowers will announce their protected activities. For example, an employee might send a copy of the outside complaint to the employer by certified mail. Certified mail has the advantage of creating a document that shows the date the employer received the item. If the retaliation occurs shortly after the whistle is blown, then the timing alone may persuade a judge that the employer’s retaliatory motive.
What is an “adverse employment action?”
Most anti-retaliation laws provide remedies for any “adverse employment action.” Courts have varied on what constitutes an “adverse employment action,” but in general, retaliation can be firing or laying off; blacklisting; demoting; suspension; denying overtime or promotion; disciplining; denying benefits; failing to hire or rehire; intimidation or harassment; threats; reassignment to a less desirable position; applying or issuing a policy that confers an unfavorable personnel action when employees act as whistleblowers; or reducing wages or work hours.
I haven’t been fired, but my employer has decided to make my life at work very difficult. Can I still bring a claim if I haven’t been terminated?
The answer: possibly yes. It is not uncommon for employers to use more subtle ways to retaliate against their whistleblower employees. Promotions or transfers may evaporate. Discipline can increase. Hostile remarks can make you feel unwelcome.
If the working condition has become so intolerable that you feel like you can’t stay, it is possible your employer may have subjected you to what is called a “constructive discharge”—an environment that is so tolerable, it’s functionally equivalent to a termination and requires you to leave.
How do I prove that the protected activity caused the adverse action?
Causation can be proved either by direct evidence or by indirect evidence.
In this context, direct evidence is evidence that proves the employer’s retaliation without requiring the jury to make any inferences. For example, an email in which a supervisor writes—“I’m going to fire [employee] because he reported our embezzlement to the police”—is direct evidence.
Most cases don’t involve direct evidence. When this is the case, indirect evidence is an equally valid way to prove your case. An example of indirect evidence is: Supervisor complains to Employee A that someone in the office reported his fraudulent conduct to the regulatory agency and now there’s an investigation. Employee A tells Supervisor it was Employee B who made the report. The next day, Employee B is fired without explanation. The close time period is indirect evidence of the employer’s unlawful retaliation.
Other examples of indirect evidence are:
- Outward disapproval of the whistleblower complaint,
- Deviation from normal practices (people are not usually fired for this reason, or in this manner),
- Changing explanations for the adverse action,
- A pattern of adverse actions against those who speak up, or
- The use of false evidence.
What are my time deadlines?
Nearly every kind of legal claim has a time limit for the individual to pursue a claim. The time limit—also known as the “statute of limitations”—varies depending on the applicable law. For example, a union contract may only permit a grievance to be filed within three days of the adverse action.
In Connecticut, there are two whistleblower statutes: Conn. Gen. Stat. §§ 31-51m and 4-61dd. Section 31-51m is the general whistleblower statute, and § 4-61dd applies only to an employee of the state, of a quasi-public agency, or of a large state contractor. The two statutes have different regimes for properly filing in state court. Section 31-51m is fairly straightforward—you must file in state court within 90 days of the later of administrative exhaustion or the violation; § 4-61dd is more complex and dependent on the facts of your case.
The deadline to file a retaliation case under Title VII or its Connecticut state counterpart is 300 days. Other statutes can provide longer timelines too. To the extent you also have one or more federal claims, the applicable federal statutes’ varying filing deadlines will impact your procedural process. It is therefore a good idea to consult an attorney as soon as possible if you believe your employer has retaliated against you for blowing the whistle, because delay may permanently foreclose your ability to recover.
Most importantly, you must comply with the deadline to file your case. It is therefore a good idea to consult an attorney as soon as possible if you believe your employer has retaliated against you for blowing the whistle, because delay may permanently foreclose your ability to recover. Contact us if you need help with your claim.