Reporting suspected wrongdoing can create difficult workplace circumstances. An employee may believe that a report was necessary, only to experience negative treatment afterward.
The situation can become especially concerning when the employee believes the adverse treatment happened because of protected whistleblower activity.
Whistleblower retaliation can take different forms, and the protections available depend on the specific law involved.
Whittaker Assistance can help employees understand the factual and legal issues surrounding a potential retaliation claim and consider appropriate next steps.
What Is Whistleblower Retaliation?
Whistleblower retaliation generally refers to adverse action taken against an individual because of protected whistleblower activity.
The precise definition varies by statute.
Potential examples can include:
- Termination
- Demotion
- Reduced responsibilities
- Unfavorable employment changes
- Threats
- Harassment
- Other adverse treatment
Not every workplace conflict qualifies as unlawful retaliation.
When Can Retaliation Become a Legal Issue?
The employee generally needs to show facts connecting protected activity with the challenged employment action under the applicable law.
That makes timing and documentation important.
For example, an employee may report suspected misconduct and receive a negative employment action shortly afterward.
The timing alone may not establish retaliation, but it can become part of the overall factual record.
Types of Conduct That May Receive Protection
Protected activity varies according to the law.
Depending on the circumstances, it can include reporting suspected securities violations, government fraud, tax misconduct, or other protected activity.
The employee should identify which law may govern the situation.
Evidence in Whistleblower Retaliation Cases
Documentation can become particularly important when workplace events are disputed.
Potentially relevant evidence includes:
- Performance reviews
- Emails
- Internal complaints
- HR communications
- Employment records
- Reporting documents
- Disciplinary notices
- Text messages
Preserve the chronology of important events.
Creating a Retaliation Timeline
A timeline can help connect the relevant events.
For example:
Concern identified → report made → management response → employment action → subsequent communications
The timeline should also include ordinary workplace events, not only events that support the claim.
A complete record provides better context.
Performance Issues and Retaliation Claims
An employer may have legitimate reasons for taking an employment action.
For that reason, a retaliation claim may require careful analysis of the employer’s stated reason, the employee’s history, and the circumstances surrounding the action.
A negative employment decision does not automatically establish retaliation.
Federal and State Protections
Whistleblower protections can come from federal statutes, state laws, or other legal rules.
The applicable protections may depend on the industry, employer, type of misconduct, and reporting method.
That creates another reason to identify the precise legal framework involved.
What Should an Employee Do After Suspected Retaliation?
Preserve employment records and document important communications.
Keep copies of relevant records that you are legally permitted to retain.
At the same time, avoid altering documents or removing materials in violation of workplace policies or legal obligations.
Can a Retaliation Claim Be Settled?
Some employment disputes resolve through negotiation or settlement.
The appropriate approach depends on the facts, applicable law, and the employee’s objectives.
Any proposed settlement should be reviewed carefully before acceptance.
How Whittaker Assistance Can Help
Whittaker Assistance can help employees organize the chronology of their whistleblower activity and subsequent workplace events.
The review may include reporting documents, employment records, communications, and the legal framework governing the alleged retaliation.
Frequently Asked Questions
What counts as whistleblower retaliation?
It can include certain adverse employment actions taken because an individual engaged in legally protected whistleblower activity.
Is being fired automatically retaliation?
No. A termination can have other explanations. The circumstances and applicable law must be examined.
What evidence should I keep?
Preserve relevant communications, performance records, reporting documents, HR correspondence, and other employment records that you are permitted to retain.
Can whistleblower retaliation happen after an internal complaint?
Potentially. Whether the complaint qualifies as protected activity depends on the applicable law and circumstances.
How long do retaliation claims take?
The timeline varies considerably depending on the legal process, evidence, negotiations, and whether litigation becomes necessary.
Understanding Your Workplace Rights
Whistleblower retaliation concerns can be difficult to evaluate because workplace disputes often involve competing explanations for the same event.
A clear record of what was reported, when it was reported, and what occurred afterward can help provide needed context.
Whittaker Assistance can help employees evaluate potential whistleblower retaliation claims and consider the legal options that may apply to their circumstances.
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