Whistleblower retaliation laws prohibit a broad range of retaliatory actions against whistleblowers, including any act that would dissuade a worker from engaging in protected whistleblowing. Examples of actionable whistleblower retaliation include:
- Terminating a whistleblower;
- Constructively discharging a whistleblower;
- Demoting a whistleblower;
- Suspending a whistleblower;
- Harassing a whistleblower or subjecting the whistleblower to a hostile work environment;
- Reassigning a whistleblower to a position with significantly different responsibilities;
- Issuing a performance evaluation or performance improvement plan that supplies the necessary foundation for the eventual termination of the whistleblower’s employment, or a written warning or counseling session that is considered discipline by policy or practice and is routinely used as the first step in a progressive discipline policy;
- Placing the whistleblower on administrative leave;
- Threatening to take an adverse action against a whistleblower;
- Subjecting a whistleblower to a retaliatory investigation or retaliatory surveillance;
- Suing a whistleblower for the purpose of retaliating against the whistleblower;
- Outing a whistleblower;
- Intimidating a whistleblower;
- Initiating a law enforcement investigation or facilitating an employee’s detention by U.S. ICE after the employee reported a serious injury; or
- Discriminating against a whistleblower in the terms and conditions of employment because of whistleblowing.
The DOL Administrative Review Board has emphasized that statutory language prohibiting discrimination “in any way” must be broadly construed and therefore a whistleblower need not prove that a retaliatory act had a tangible impact on an employee’s terms and conditions of employment.
Damages for Whistleblower Retaliation
Whistleblower retaliation can derail a career and deprive the whistleblower of future earnings. Whistleblowers should be rewarded for doing the right thing, but all too often they suffer retaliation and find themselves marginalized and ostracized. Federal and state whistleblower protection laws provide remedies to compensate whistleblowers that have suffered retaliation, including:
- back pay (lost wages and benefits);
- emotional distress damages;
- damages for reputational harm;
- reinstatement or front pay in lieu thereof;
- lost future earnings; and
- punitive damages.
Every case is unique. Contact an experienced whistleblower retaliation attorney to find out what damages you might be able to recover.
This table lists examples of jury verdicts in whistleblower retaliation cases.
Whistleblower Retaliation Lawyers
The experienced whistleblower retaliation lawyers at Zuckerman Law represent whistleblowers in retaliation actions under a variety of federal and state whistleblower protection laws, including the Sarbanes-Oxley Act.
We have represented CEOs, CFOs, in-house counsel, partners at audit firms and other senior professionals in high-stakes whistleblower matters. Click here to read reviews and testimonials from former clients, including corporate officers and executives.
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Whistleblower Retaliation Resources
Protected Whistleblowing Under Whistleblower Retaliation Laws
- Is a whistleblower’s motive for engaging in a protected activity relevant in a whistleblower protection case?
- Are disclosures made in the course of performing one’s job duties protected?
- To engage in protected conduct, must a whistleblower cite a specific violation of law or regulation?
- Must a whistleblower prove that the individual who made the final decision to take the adverse action has personal knowledge of the whistleblower’s protected activity?
- What is perceived whistleblowing?
- Can whistleblowers use company documents to expose fraud?
- Can False Claims Act whistleblowers use confidential documents to report fraud to the government?
- Can Whistleblowers Disclose Secret Recordings to the SEC?
- Is an employee protected against retaliation for participating in an employer’s internal investigation?
- Does retaliation against an employee due to the employee’s testimony in federal court violate civil rights laws?
- Are cybersecurity whistleblowers protected against retaliation?
- Are whistleblowers at government contractors and grantees protected against retaliation?
- Does the False Claims Act prohibit whistleblower retaliation?
- What whistleblower laws protect accountants?
- What law protects whistleblowing about tax fraud or violations of IRS rules?
- What law protects federal employees against whistleblower retaliation?
- Are second-hand whistleblower reports credible, and do they merit investigation?
Forms of Whistleblower Retaliation
- What is whistleblower retaliation?
- Is a lawsuit against a whistleblower actionable retaliation?
- What is anticipatory retaliation?
- What is constructive discharge?
- Is a negative performance evaluation an actionable retaliatory action or adverse employment action?
- Is administrative leave or a paid suspension an adverse employment action?
- Is a warning letter an adverse employment action?
- Is a threat to take a disciplinary action an adverse employment action?
- Is an employer’s attempt to stop a corporate whistleblower from blowing the whistle to the government actionable retaliation?
- Is denial of a transfer away from a biased supervisor an adverse action?
- Is assigning a sales employee a low performing territory an adverse employment action?
- Is threatened disciplinary action an adverse action under the whistleblower retaliation laws?
- Does a retaliatory investigation of a whistleblower violate whistleblower retaliation laws?
- Do whistleblower protection laws bar associational discrimination or associational retaliation?
- Is placing a whistleblower under surveillance actionable retaliation?
- What is preemptive retaliation?
- Is retaliation that occurred outside of the statute-of-limitations period relevant evidence of retaliation?
Proving Whistleblower Retaliation
- How can a whistleblower prove retaliation?
- Which whistleblower protection laws employ the contributing factor causation standard?
- Does an employer’s failure to follow its personnel policies and practices prove retaliation?
- What are some methods to prove pretext in retaliation and discrimination cases?
- Does subjecting an employee to heightened scrutiny evidence retaliation?
- Is an employer’s knowledge of protected whistleblowing a separate element of a whistleblower retaliation case?
- Why should courts be skeptical of an adverse employment action taken based on subjective criteria?
- Does a whistleblower’s disclosure of his misconduct deny the whistleblower protection under whistleblower retaliation laws?
- What is the “reasonable cause” standard in an OSHA whistleblower investigation?
- What is the burden-shifting framework under most DOL whistleblower protection laws?
- Can a whistleblower prevail in a retaliation case if they had a performance problem prior to blowing the whistle?
Whistleblower Retaliation Damages/Remedies
- Does a whistleblower have to sustain economic damages to bring a claim?
- Can whistleblowers recover damages for reputational harm?
- How is interest on back pay calculated?
- What are emotional distress damages and how do I prove them?
- What is front pay?
- Can OSHA order the reinstatement of a Sarbanes-Oxley whistleblower?
- What is the duty to mitigate damages?
- How does the Department of Labor determine emotional distress damages in whistleblower retaliation cases?
Whistleblower Rights and Whistleblower Retaliation Laws
- When does the statute of limitations in DOL whistleblower retaliation cases commence?
- Does the failure to name the employer’s business entity correctly in an OSHA administrative complaint constitute a failure to exhaust administrative remedies?
- Does OSHA prohibit gag clauses in settlement agreements?
- What rules and procedures govern OSHA investigations?
- Does OSHA protect the confidentiality of a witness in an OSHA whistleblower investigation?
- Are employer non-disclosure contracts and policies barring whistleblowing enforceable?
- Will I get a reward for reporting fraud being committed by my employer?
- Does the breach of an anti-retaliation policy in a Code of Ethics give rise to a retaliation claim?
- What laws prohibit defense contractors from retaliating against whistleblowers?
- What whistleblower laws protect corporate officers and executives?
- What are the differences between Dodd-Frank and Sarbanes-Oxley whistleblower protection?
False Claims Act Whistleblower RetaliationFalse Claims Act Whistleblower Protection Law
Actionable Retaliation Outside the Workplace
In addition, some forms of post-employment retaliation and retaliation outside the workplace can constitute actionable retaliation. The EEOC’s 2016 Enforcement Guidance states:
Actions That Are Not Work-Related. A materially adverse action may also be an action that has no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it might well dissuade a reasonable person from engaging in protected activity. Prohibiting only employment-related actions would not achieve the goal of avoiding retaliation because “an employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.” The Supreme Court in Burlington Northern observed that, although the substantive anti-discrimination provisions seek elimination of discrimination that affects employment opportunities because of employees’ racial, ethnic, or other protected status, the anti-retaliation provisions seek to secure that objective by preventing an employer from interfering in a materially adverse way with efforts to enforce the law’s basic guarantees.
Additional Examples. Other examples of materially adverse actions may include:
- disparaging the person to others or in the media;
- making false reports to government authorities;
- filing a civil action;
- threatening reassignment;
- scrutinizing work or attendance more closely than that of other employees, without justification;
- removal of supervisory responsibilities;
- abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not sufficiently “severe or pervasive” to create a hostile work environment;
- requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity;
- terminating a union grievance process or other action to block access to otherwise available remedial mechanisms;
- taking (or threatening to take) a materially adverse action against a close family member (who could bring a claim as an aggrieved individual in addition to the person who engaged in protected activity); and
- any other action that might well deter reasonable individuals from engaging in protected activity.
A fact-driven analysis applies to determine if the challenged employer action(s) in question would be likely to deter participation or opposition. To the extent some lower courts applying Burlington Northern have found that some of the above-listed actions can never be significant enough to deter protected activity, the Commission concludes that such a categorical view is contrary to the context-specific analysis, broad reasoning, and specific examples endorsed by the Supreme Court.
Matters are not actionable as retaliation if they are not likely to dissuade an employee from engaging in protected activity in the circumstances. For example, courts have concluded on the facts of given cases that a temporary transfer from an office to a cubicle consistent with office policy was not a materially adverse action and that occasional brief delays by an employer in issuing refund checks to an employee that involved small amounts of money were not materially adverse. Such actions were not deemed likely to deter protected activity, as distinguished from the transfer to harder work, the exclusion from a weekly training lunch, or the unfavorable schedule change described by the Supreme Court in Burlington Northern as materially adverse.
If the employer’s action would be reasonably likely to deter protected activity, it can be challenged as retaliation even if it falls short of its goal. The degree of harm suffered by the individual “goes to the issue of damages, not liability.” Regardless of the degree or quality of harm to the particular complainant, retaliation harms the public interest by deterring others from filing charges. An interpretation of Title VII that permits some forms of retaliation to go unpunished would undermine the effectiveness of the EEO statutes and conflict with the language and purpose of the anti-retaliation provisions.
Determining whether an action is reasonably likely to deter protected activity under Burlington Northern is fact-dependent.
This guidance and the cases cited therein can be persuasive authority in whistleblower retaliation cases.