Image of What is preemptive retaliation?

What is preemptive retaliation?

Preemptive Retaliation

The doctrine of preemptive retaliation permits a whistleblower to bring a claim where the employer retaliates against the whistleblower prior to the whistleblower engaging in a protected act (for the purpose of preventing the whistleblower from engaging in protected conduct).  This doctrine recognizes that retaliatory action taken against an individual in anticipation of that person engaging in protected whistleblowing is no less retaliatory than action taken after the whistleblowing.

A 1995 Eleventh Circuit decision in a nuclear whistleblower case relied on the doctrine to conclude that internal disclosures are protected under the whistleblower protection provision of the Energy Reorganization Act.  Bechtel Const. Co. v. Secretary of Labor, 50 F. 3d 926 (11th Cir. 1995) (“The Secretary’s interpretation promotes the remedial purposes of the statute and avoids the unwitting consequence of preemptive retaliation, which would allow the whistleblowers to be fired or otherwise discriminated against with impunity for internal complaints before they have a chance to bring them before an appropriate agency . . . This construction encourages safety concerns to be raised and resolved promptly and at the lowest possible level of bureaucracy, facilitating voluntary compliance with the ERA and avoiding the unnecessary expense and delay of formal investigations and litigation.”)

An example of preemptive retaliation is where an employer fires or otherwise retaliates against an employee based on the employer’s expectation that the employee will provide adverse testimony in a proceeding.  In Steele v. Youthful Offender Parole Board, 2008 WL 2043197 (Cal.App. 3 Dist., May 13, 2008), the court found that an employer engaged in preemptive retaliation by constructively discharging an employee who was expected to testify in support of a co-worker’s retaliation lawsuit.  The court’s reasoning provides a strong basis to apply the doctrine of preemptive retaliation to a broad range of anti-retaliation statutes:

In Lujan v. Minagar (2004) 124 Cal.App.4th 1040, 21 Cal.Rptr.3d 861 (Lujan ), a case involving retaliation under California’s Occupational Safety and Health Act, the court held Labor Code section 6310 “applies to employers who retaliate against employees whom they believe intend to file workplace safety complaints.”  (Lujan, supra, at p. 1046, 21 Cal.Rptr.3d 861.)   The court reasoned that “firing workers who are suspected of planning to file workplace safety complaints [could] effectively discourage the filing of those complaints” and “allowing such preemptive retaliation would be at odds with section 6310’s apparent intent-to encourage such complaints and to punish employers who retaliate against employees as a result . . .   According to Lujan, “[t]o hold otherwise would create a perverse incentive for employers to retaliate against employees who they fear are about to file workplace safety complaints before the employees can do so, therefore avoiding liability under section 6310.   We do not believe the Legislature could have possibly intended such an absurd result, which could be depicted by an image of an employer following an employee and firing him or her just before the employee reached the Cal-OSHA filing window, complaint in hand.  [Citation.]”  (Lujan, supra, at pp. 1045-1046, 21 Cal.Rptr.3d 861.)

Although Lujan involved interpretation of Labor Code section 6310, we are persuaded the same analysis is applicable to FEHA. “The legislative purpose underlying FEHA’s prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints[.]”  (Akers v. County of San Diego, supra, 95 Cal.App.4th at p. 1455, 116 Cal.Rptr.2d 602.)   Employer retaliation against employees who are believed to be prospective complainants or witnesses for complainants undermines this legislative purpose just as effectively as retaliation after the filing of a complaint.   To limit FEHA in such a way would be to condone “an absurd result” (Lujan, supra, 124 Cal.App.4th at p. 1045, 21 Cal.Rptr.3d 861) that is contrary to legislative intent.  (See also Cal.Code Regs., tit. 2, § 7287.8, subd (a)(2)(B) [FEHA protects “[i]nvolvement as a potential witness which an employer ․ perceives as participation in an activity of the [DFEH] or [Fair Employment and Housing] Commission”].)

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Whistleblower Retaliation Lawyers

Our experienced whistleblower retaliation lawyers have substantial experience litigation whistleblower retaliation cases nationwide, including claims under the Sarbanes-Oxley whistleblower protection law.  To schedule a confidential consultation, call us at 202-262-8959 or send us a message.

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Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases.  Three of the cases he worked on are featured in Tom Mueller’s seminal book about whistleblowing Crisis of Conscience: Whistleblowing in an Age of Fraud and Dan Maldea’s Corruption in U.S. Higher Education: The Stories of Whistleblowers.  The False Claims Act qui tam cases that Zuckerman has worked on in conjunction with other attorneys have resulted in recoveries in excess of $100 million, and he has secured settlements above $1 million in eight SOX whistleblower retaliation matters.

In 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law, and Washingtonian magazine has named two of our attorneys to its list of Top Whistleblower Attorneys.  U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area in the 2020 edition “Best Law Firms.”

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.