Whistleblower Retaliation Claims

A whistleblowing claim occurs when an individual makes a formal complaint about fraudulent or illegal conduct that is perpetrated against the federal government or a state or local government.  In many cases, the individual who blows the whistle does so against their own employer, which sometimes causes the employer to retaliate against the employee. Should retaliation occur, the employee may then file a separate whistleblower discrimination action (also known as a “whistleblower complaint”) against their employer. Most laws that provide a cause of action for whistleblowers also provide them protection from retaliation.

Common Whistleblower Laws 

False Claims Act (Federal Contractors) 

The False Claims Act, enacted in 1863 under President Lincoln, is the United States’ first and oldest whistleblower law. It provides a method for employees of government contractors to report fraud and waste perpetrated against the federal government — such as Medicare and Medicaid fraud — in exchange for a portion of the government’s recovery. Any employee who is retaliated against for filing a qui tam action under the False Claims Act — including discharge, demotion, and harassment — is entitled to any relief necessary to make the employee whole. This includes reinstatement, double back pay, and litigation costs. 

Dodd-Frank (Securities and Exchange Commission) 

The Dodd-Frank Wall Street Reform and Consumer Protection Act was passed in 2010 in the wake of the Great Recession. It provides a mechanism for employees to report securities law violations and bribes paid to foreign officials to the Securities and Exchange Commission. It protects whistleblowers against discharge, demotion, suspension, and harassment for reporting such violations. It also creates a private right of action for whistleblowers to file a retaliation complaint in federal court against their employers. 

Taxpayer First Act (Internal Revenue Service) 

The Taxpayer First Act was passed in 2019 that made several reforms to the Internal Revenue Service. While the Internal Revenue Code has long provided a mechanism to report tax avoidance, fraud, and other noncompliance to the IRS, the Taxpayer First Act added whistleblower protections to it. Any employer, officer, employee, contractor, subcontractor, or agent of an employee is prohibited from retaliating against whistleblowers. 

Understanding the Difference Between a Whistleblower Action and a Whistleblower Retaliation Action 

Whistleblower law can confuse some because there are two sides to the law — the actual qui tam action against the whistleblower’s employer for fraud or waste, and, in some cases, whistleblower retaliation actions against the whistleblower’s employee for taking adverse employment action against the whistleblower. If a company retaliates against a whistleblower, it may face two lawsuits (the qui tam action and the retaliation action) against it at the same time relating to the same subject matter. Please contact a California whistleblower retaliation lawyer for more information about the interplay between these two types of whistleblower actions.

What Actions Constitute “Retaliation” Against Whistleblowers?

“Retaliation” is somewhat of a vague term and can encompass a variety of behaviors that could mean different things to different people. The Occupational Safety & Health Administration (part of the Department of Labor, which enforces many federal whistleblower laws), defines “retaliation” as any “adverse action against workers.” Some examples of actions that OSHA considers to be adverse include:

• Termination of employment
• Blacklisting
• Demotion
• Denial of promotion
• Disciplining
• Denial of benefits
• Failure to hire or rehire
• Intimidation or harassment
• Making threats against the employee
• Reassigning the employee less desirable tasks
• Reducing the employee’s pay or hours

Anticipatory Retaliation 

Not at all adverse employment actions occur after the whistleblower engages in a protected activity. For example, anticipatory retaliation is a type of retaliation that occurs before the whistleblower reports wrongdoing. It is often done to discourage or prevent the whistleblower from making a report and is usually based on an employer’s suspicion that an employee is about to blow the whistle. Courts generally interpret the concept of adverse employment actions broadly and consider anticipatory retaliation a form of prohibited whistleblower retaliation. 

Constructive Termination

Most people consider themselves terminated from their jobs only when their employers make it very clear that they no longer have a job. However, the law recognizes other less clear types of terminations. A constructive termination is a form of termination that occurs where an employer makes working conditions so intolerable that a reasonable person in the employee’s position would feel forced to resign. Employers often resort to constructive termination rather than explicit termination in an attempt to circumvent whistleblower and anti-discrimination laws. However, constructive termination generally is considered equal to explicit termination for whistleblower retaliation purposes. However, constructive termination can be difficult to prove; for help doing so, please contact a San Francisco whistleblower retaliation lawyer.

How to Prove Whistleblower Retaliation 

Proving whistleblower retaliation is often one of the most challenging aspects of whistleblower retaliation claims. Many employers who engage in this behavior do so indirectly, such as the case with constructive termination. It is often hard to discern whether an adverse employment action was related to a whistleblower action or merely the result of ordinary performance shortcomings. Whistleblowers must thus rely on a combination of direct evidence (if it is available) and circumstantial evidence. 

Direct Evidence 

Direct evidence of whistleblower retaliation includes verbal and written statements by the whistleblower’s employer indicating an intention to take adverse action due to the whistleblower’s activities. For example, it could take the form of an IM message from a company executive to the whistleblower’s supervisor stating that he or she might “cause a problem” and needs to be relocated. This type of evidence is difficult to come by in whistleblower cases.  

Circumstantial Evidence 

The more common evidence used in whistleblower cases is circumstantial evidence. This type of evidence does not directly implicate the whistleblower’s employer. Still, it would cause a reasonable person to conclude that the whistleblower’s actions were the basis for the adverse employment action. Circumstantial evidence can include: 

• Temporal proximity between the whistleblower’s action and the adverse employment action
• Evidence that the employer’s explanation was merely pretextual 
• Inconsistent application of the employer’s policies (including between the whistleblower and other employees and between the whistleblower in the past and present) 
• Shifting explanations for the action by the employer 
• A change in the employer’s attitude toward the whistleblower after his or her action

If you believe you have been retaliated against because of your participation in a protected activity, please contact a California whistleblower retaliation lawyer.

Causation 

In addition to presenting evidence of retaliation, the whistleblower must also show a connection between his or her protected action and the employer’s adverse employment action (known in the law as “causation”). However, the causation requirement does not mean that the whistleblower must show that his or her protected activity was the sole cause of the employer’s adverse employment action. Rather, the whistleblower’s protected action may be merely a “contributing factor” to the adverse action under some whistleblower protection statutes. In other words, if the whistleblower’s action played at least some role — however small or insignificant — in the employer’s retaliation, the whistleblower has shown causation. For more information about proving causation in your case, please contact a San Francisco whistleblower retaliation lawyer. 

Legal Remedies for Whistleblower Retaliation

2As such, many of the above whistleblower laws provide legal remedies to the injured party when an employer retaliates against a whistleblower. The specific remedies vary by statute, but some of the most common remedies are:

• Reinstatement of employment
• Emotional distress damages and damages for reputational harm
• Reversal of adverse actions (such as restoration of the employee’s original position after a demotion, removal of demerits, etc.)
• Back pay
• Front pay (the employee’s expected earnings had they not been terminated)
• Consequential damages (expenses incurred as a result of the adverse action, such as job search costs, medical bills, etc.)
• Punitive damages

Some remedies can be even more severe. For example, willful violations of the Fair Labor Standards Act can result in criminal fines of up to $10,000 and six months in prison. For more detailed information about the remedies and damages available in your case, contact a California whistleblower attorney.

What Kinds of Rewards Do Whistleblowers Receive in a Lawsuit?

Most whistleblower statutes provide an incentive for individuals to come forward and disclose useful information by sharing a percentage of the profits with them. For example, if an employee provided the Securities and Exchange Commission (SEC) with accurate information that her employer had defrauded the government of $3 million and the statute authorized a reward of 10%, the employee would receive $300,000. The exact percentage amount of reward varies from statute to statute but is generally anywhere from 15-30%. Keep in mind, however, that the quality of information the whistleblower provides can affect the amount of his or her reward. Generally, information that is fresher and more useful to the government and that involves larger sums of money will result in larger reward percentages.

Contact a California Whistleblower Attorney Today for Confidential Assistance 

Though many employees may feel intimidated at the thought of being a whistleblower, state and federal laws offer strong protection. If you face retaliation, it is within your rights to file a legal claim and possibly receive compensation. For a free and confidential consultation with a California lawyer about your possible case, please call us at 415-441-8669 or toll-free at 888-503-8267 or send an email to info@evanslaw.com or under the Contact Us portion of this website.