Anti-Retaliation Protections for Whistleblowers

Our whistleblower attorneys represent individuals when they suffer retaliation at the hands of their employer because of internal and external tips concerning misconduct.  There are various local, state and federal laws, including Dodd-Frank (SEC and CFTC) and the False Claims Act, protecting private and government whistleblowers.  Unfortunately, these protections do not ensure that all individuals are covered.

Please contact us for a free, confidential consultation about your rights as a whistleblower and available protections. Fill out our online contact form or call us at 1-800-590-4116.

Federal Laws Concerning Whistleblower Retaliation

False Claims Act

The Federal False Claims Act offers protection from retaliation to whistleblowers bringing qui tam lawsuits under it.  Section 3730(h) prohibits adverse changes to the terms and conditions of employment as a result of lawful whistleblowing activities to stop violations of the False Claims Act.  If an employee is discriminated against as a result of their whistleblower status, they are entitled to bring a cause of action in federal district court for double back pay, interest and compensation for special damages such as litigation costs and attorneys’ fees.  The anti-retaliation provisions of the False Claims Act are available to whistleblowers within three years of the date of retaliation.  Other laws, including state and local False Claims Act legislation, may provide additional anti-retaliation protections for the relator bringing a qui tam complaint.

SEC

The SEC has specific protection against retaliation (discharge, demotion, suspension, harassment, or any other discrimination against whistleblowers) by employers. Individuals are allowed to bring a private suit against their employer, and if they prevail, are entitled to reinstatement, back pay, litigation costs, expert witness fees, and attorney fees.  These protections were passed by Congress as part of the Dodd-Frank Act.  The SEC rules interpret the law to protect individuals who have only filed an internal report to the company.  They do not require a report to the SEC.  However, some courts have invalidated the internal reporting protections of the SEC.

The SEC whistleblower program has also reserved the right to bring an enforcement action on behalf of whistleblowers who have been retaliated against by their employer.  The first exercise of this power happened in 2014 when one of the allegations made by the securities regulator against a hedge fund settling the SEC’s charges involved retaliation.

Sarbanes Oxley

SOX was passed by Congress following the Enron and other accounting scandals in the early 2000s.  It protects employees of publicly traded companies from retaliation.  It also covers employees of contractors and subcontractors according to the Supreme Court decision in Lawson v. FMR.

CFTC

After submitting Form TCR to the CFTC, an individual is considered a whistleblower and protected by the anti-retaliation provisions inserted into the Commodity Exchange Act by the Dodd-Frank Act.  Dodd-Frank provides a federal cause of action to whistleblowers who are discharged, demoted, suspended, harassed or otherwise discriminated against by their employer because of any lawful act done in providing information to the CFTC or assisting with the investigations and enforcement actions that result.  The individual must bring a lawsuit in an appropriate district court of the United States within two years of the retaliatory conduct. If the whistleblower is successful in the lawsuit, they are entitled to reinstatement, back pay plus interest, and compensation for special damages including litigation costs, expert witness fees and attorney’s fees.

In 2016, the CFTC submitted new proposed rules concerning the CFTC whistleblower program.  If ultimately adopted, these changes would provide additional protections against retaliation.

Other Federal Laws

Various other federal laws contain provisions protecting individuals who report violations of their terms to the U.S. Government. These laws are typically administered by OSHA.  The U.S. Government also offers protection to U.S. Government employees in some instances through various other federal laws.  Some of these laws have short statute of limitations – as little as 30 days – so contact us as soon as possible.

IRS Whistleblower Program

The law authorizing the IRS whistleblower program in 2006 did not provide for a federal cause of action to protect whistleblowers from retaliation by their employer.  Individuals who submit tips to the IRS are only protected if they are covered by another law.  There have been some efforts to add them to the law but these efforts have so far been unsuccessful.  Tax whistleblowers are primarily protected by the assurance of confidentiality made by the IRS.

State Laws

Approximately thirty states have passed a version of the False Claims Act which also offers local whistleblowers protection from retaliation by their employer.  Learn more about each law in our overview of the state False Claims Acts.

Each state has the option to create laws that go beyond the federal protections.  Many have done so.  Our overview of the False Claims Act in each state also provides information concerning the state’s anti-retaliation protections.

Whistleblower Retaliation News

SEC, CFTC Directors Speak on Whistleblower Programs

The Chief of the SEC's Office of the Whistleblower, Jane Norberg, and the Director of the CFTC Whistleblower Office, Christopher Ehrman, spoke recently at...

Other Anti-Retaliation Laws

Retaliation protections are not limited to whistleblowers. The U.S. has set up a broad network to protect employees who are doing the right thing from subsequent punishment by their supervisor or employer. An individual that complains of race discrimination, sex discrimination or even wage theft can be protected from subsequent changes in the terms and conditions of their employment as a result of coming forward.

What are some examples of retaliation?

Firing the whistleblower is the classic example of retaliation. If a company finds out that an individual is reporting their misconduct to the U.S. Government, they may decide to fire the individual and fight any lawsuit for wrongful termination brought later.

Transferring an employee to a less favorable location, giving them a new supervisor or changing job titles can all be examples of retaliatory conduct.  If the intent of the company is to force the employee to leave, these are excellent examples of retaliation.

Retaliation may also be more subtle. It may involve giving desirable assignments to other employees and funneling the miserable, difficult assignments to the whistleblower.

Retaliation by Coworkers

In some situations, it is not the employer but the coworkers who engage in retaliation against an employee reporting misconduct.  If colleagues engage in retaliatory conduct, an employer may also be held liable in certain circumstances.

How to Prove Retaliation

Emails are an excellent method to prove retaliation. Although some information that will support a case of retaliation may be sent directly to the employee subjected to the content, other evidence may need to be gathered from friendly coworkers who disapprove of the company’s behavior and are sympathetic to the employee.

Another way to demonstrate retaliation is to show dissimilar treatment between similar employees.  If the employer promotes an individual who is less qualified or has less favorable reviews than the employee who complained of misconduct, it can be an example of retaliation.

The testimony of coworkers can be important in this scenario.  If it is just the employee’s word against the word of the supervisor/employer, it will depend on who the jury believes more.  Other witnesses who will testify as to the motives of the employer can help tip the scales one way or the other.

Proving retaliation can be tough – especially where there are a multitude of reasons for the employer’s decision.  Judicial doctrines have been developed to appropriate allocate the burden of proof and liability in these complex scenarios.

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