4 Anti-Retaliation Laws Whistleblowers Should Know
If you have recently been fired, demoted or harassed at work because you objected to conduct you believed was wrong – or if you are considering making an objection or complaint – you may be wondering whether any federal laws exist that might offer you protection against retaliation. While in many cases an at-will employee may be discharged at any time, for any reason, there are a growing number of federal and state laws that protect the public by outlawing certain kinds of retaliation against employees who speak out about some kinds of misconduct in the workplace.
In this post, I will describe some of the federal anti-retaliation laws that most frequently offer our clients protection. This is in no way exhaustive – the Department of Labor alone administers over 20 anti-retaliation statutes in a variety of occupational fields! But the article will still help serve as a general introduction to relevant protections.
The Sarbanes-Oxley Act
- What is it? The Sarbanes-Oxley Act, known as “SOX,” protects employees of publicly traded companies and their subsidiaries who face retaliation for providing information about, or participating in investigations related to, what they reasonably believed to be violations of federal rules or laws relating to fraud on shareholders. Employees are protected whether they made their complaints or reports of fraud within the company or to external regulators.
- How do you prove a claim? To prove a claim under SOX, the employee must prove he or she engaged in protected activity under SOX, the employer knew of the protected activity, the employer subjected the employee to an unfavorable personnel action, and that his or her protected activity was a “contributing factor” to the company’s decision to take adverse action against the employee – a lighter burden than many other laws: The protected activity does not have to be the sole reason for the adverse action or even a significant reason. An employer may escape liability, however, where it shows by clear and convincing evidence that it would have taken the adverse action even in the absence of protected activity.
- How do you file a claim? To pursue a claim for retaliation under SOX, an employee must file a written complaint with the Occupational Safety and Health Administration (OSHA) within 180 days of the retaliatory actions. If successful, an employee may be reinstated, and may be awarded back pay and benefits, compensatory damages, and attorneys’ fees.
Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)
- What is it? The Dodd-Frank Act protects employees from retaliation for reporting what they reasonably believe to be violations of laws relating to consumer finance, corporate and accounting fraud, and commodity and currency exchanges, or make disclosures required or protected under laws, rules or regulations subject to the SEC’s jurisdiction.
- How do you prove a claim? To prove a claim under the Dodd-Frank Act, an employee must how that he or she engaged in protected activity, and that the adverse action was causally related to the protected activity. Employees who report securities violations to the Securities and Exchange Commission are entitled to protection, and there is currently a disagreement in the courts about whether employees who report those violations internally, within the company, are protected by the Dodd-Frank Act.
- How do you file a claim? To pursue a claim for retaliation under Dodd-Frank, an employee must file a complaint in U.S. federal district court within six years after the date the violation occurred or within three years the employee knew or reasonably should have known of the retaliation and within six years after the date on which the violation occurred (but under no circumstances more than 10 years after the retaliation occurred).
False Claims Act Retaliation
- What is it? The False Claims Act (FCA) protects employees of federal government contractors or certain other entities that receive federal government funds from suffering retaliation because they investigated, reported or attempted to stop an employer from engaging in practices that would defraud the U.S. government. These practices more specifically include attempts to get false or fraudulent claims paid or approved by the government. Industries in which we frequently see FCA retaliation claims include the medical and pharmaceutical industries and defense contracting.
- How do you prove a claim? To prove a claim under the FCA, an employee must prove that his or her employer knew about the protected activity and the retaliation was motivated at least, in part, by the protected activity.
- How do you file a claim? To pursue a claim for retaliation under the FCA, an employee must file a claim in U.S. federal district court within three years of the adverse actions. If successful, an employee may be reinstated and may be awarded two times the amount of back pay and interest on the back pay, and receive compensation for special damages including litigation costs, attorneys’ fees, and in some jurisdictions compensatory damages.
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”)
- What is it? AIR21 protects employees of air carriers and certain related contractors and subcontractors who provide information to, or assist in an investigation by, the government or the employer about a potential violation of the Federal Aviation Administration (FAA) laws or other federal laws and regulations related to air carrier safety. The Secretary of Labor has also interpreted AIR21 to include limited protection to some employees who refuse to work when they reasonably believe their working conditions to be unsafe and they do not receive adequate explanations from responsible officials that the conditions are safe and the employer is not violating laws or regulations.
- How do you prove a claim? To prove a claim under AIR21, the employee must prove he or she engaged in protected activity under AIR21, the employer knew of the protected activity, the employer subjected the employee to an unfavorable personnel action, and that his or her protected activity was a “contributing factor” to the company’s decision to take adverse action against the employee, as in SOX above.
- How do you file a claim? To pursue a claim under AIR21, an employee must file a complaint with OSHA within 90 days of the adverse actions. If successful, an employee may be reinstated, and may be awarded back pay and benefits, compensatory damages, and attorneys’ fees.
If your employer has taken an adverse action against you and you believe it is because you made objections that may be protected by law, you should consult with an attorney to determine whether one of these statutes – or one of the many other federal anti-retaliation statutes – gives you protection.