Employees who report their employers for legal violations are often subject to retaliation. Such whistleblower retaliation can come in many forms ranging from job termination to demotion and other adverse employment actions. Regardless of the outcome of the whistleblower investigation or case, employees who report information that leads to a case tend to be punished in some form by their employer.
It is important for employees in California to understand what behavior constitutes whistleblower retaliation under the law and how they can prove such retaliatory action. California has strong protections for whistleblowers.
Whistleblower Cases Versus Whistleblower Retaliation
First and foremost, it is important to understand that whistleblower cases and whistleblower retaliation cases are distinct. Blowing the whistle on fraud or illegal activity in the workplace is protected under federal law. However, any adverse action taken by an employer as retaliation for the whistleblowing is a separate violation and potential case.
Whistleblower retaliation is defined as any adverse action taken by a current or former employer to penalize an employee for blowing the whistle. According to the U.S. Equal Employment Opportunity Commission (EEOC), a retaliation claim consists of three elements:
- An employee's participation in a protected action
- An adverse action taken against the employee
- Existence of a causal connection between the protected activity and the adverse action
Why Anti-Retaliation Laws Exist
It is a fact that federal and local agencies that enforce the law need the help of whistleblowers without whom violations of the law and dangers to the public go unreported. It is also a fact that when you decide to stand up against your employer, you run the risk of losing your employment, career and livelihood. This can happen in any industry from the medical and health field to construction & engineering. Such a situation can have a devastating impact on your life. This is why there are anti-retaliation laws to protect employees who report such violations.
Here are some of the most common forms of retaliation that are reported:
- Reprimanding or firing an employee, which is the most common form of whistleblower retaliation
- Giving an employee poor or negative job evaluations
- Demoting or reassigning the employee to a less desirable position, sometimes forcing the employee to quit
- Verbal or physical abuse
- Threatening an employee with job loss or other adverse actions
- Increased scrutiny of job performance
- Making an employee's life difficult by changing work schedules or transferring them to a different, inconvenient location
In the case of former employers, some may attempt to spread false rumors about you so you lose future employment opportunities. Some employers may even try to "blackball" you by using their influence in the industry. Both of these forms of retaliation are illegal.
Proving Whistleblower Retaliation Claims
In order to prove that your employer retaliated against you, you must show causation. This means that you must show a direct link between the whistleblowing or reporting of the wrongdoing, and the adverse action against them. In a vast majority of whistleblower retaliation, the adverse action tends to be wrongful termination.
In order to prove whistleblower retaliation against an employer, the employee must show that he or she has engaged in "protected activity." This typically means disclosing unlawful activity by the business to the government or another overseeing entity. The second element of the whistleblower retaliation claim is that the employer subjected the employee to some type of retaliatory or adverse action.
The standard typically used to determine adverse employment action is sometimes called a "materiality test." This looks at whether the adverse employment action materially affects the plaintiff's employment. It could affect the employee's pay, benefits, job opportunities, responsibilities, etc.
The final element for whistleblower retaliation is that there must be a causal link between the protected activity and the adverse employment action. Often, it can be challenging for an employee to prove a causal link using direct evidence. For example, employers will probably never tell an employee that he or she is getting a pay cut because of whistleblowing. However, circumstantial evidence such as the timing of a pay cut or demotion can be used to achieve the same result. For example, if an employer fires an employee soon after learning about the employee's whistleblowing, the job termination is more likely to constitute whistleblower retaliation.
How Long Do I Have To File My Whistleblower Retaliation Claim?
There are time limits within which you will need to file your whistleblower retaliation claim. This is known as the statute of limitations. There could be multiple instances of retaliation leading up to your wrongful termination. You have three years from the date of the retaliation to file a claim.
If you are within the statute of limitations, you can include the retaliation claim with your qui tam case. There will be no movement while the government investigates the illegal activity. However, when the case becomes unsealed, you can litigate or settle these claims together.
Damages in a Whistleblower Retaliation Lawsuit
If you prevail in a whistleblower retaliation lawsuit against your employer, you may be able to seek compensation for the following damages:
- Lost wages and benefits
- Compensation for physical pain and mental suffering
- Loss of career opportunities because of whistleblower retaliation
- Punitive damage to punish the employer for egregious misbehavior
- Reimbursement for attorney's fees
Our Whistleblower Retaliation Lawyers Can Help
If you have questions about whistleblower retaliation, our experienced Los Angeles employment lawyers at Kingsley & Kingsley Lawyers can help you better understand your legal rights and options. Call us to schedule your free consultation and comprehensive case evaluation.