Retaliation is an all-too-common result of whistleblowing, despite numerous federal and state laws enacted to prevent it.
When and what to report — and to whom — are primary considerations for executives and other employees looking for maximum protection against retaliation after reporting potential fraud or wrongdoing at their company.
Our Whistleblower Advocacy team takes an integrated approach to whistleblowing and retaliation that often involves a series of filings with the SEC, Occupational Safety and Health Administration (OSHA), other federal agencies, and, when necessary, the courts. We give our clients the best possible opportunity to be rewarded financially for taking the risks associated with whistleblowing, and protect them if retaliation occurs.
What is Retaliation?
Retaliation is an unfavorable personnel action taken by a company in response to an employee reporting suspected wrongdoing or otherwise asserting certain rights—such as reporting harassment, discrimination, or safety concerns—referred to as protected activity. Typical forms of retaliation include:
- Firing, demotion, suspension, or harassment
- Changed job functions, or removal of supervisory responsibilities
- Removal from significant assignments or otherwise being marginalized
What constitutes protected activity varies by statute.
The Sarbanes-Oxley Act protects employees who report mail, wire, or bank fraud, or securities-law violations. These protections apply whether reported internally or to the government. Those claiming they have been retaliated against for those actions must file complaints with the Department of Labor within 180 days of the retaliation occurring. The complaint can be brought in federal court if OSHA doesn’t redress the retaliation within 180 days of the filing of the complaint. Remedies may include reinstatement, back pay, attorneys’ fees and litigation costs, and emotional distress.
The Dodd-Frank Act protects employees who report mail, wire, or bank fraud, or securities-law violations, but with a critical distinction from Sarbanes Oxley: The protections apply only if the whistleblower reports to the SEC, as a recent Supreme Court decision made clear. Complaints can be filed in federal court up to six years after the retaliation occurred. Remedies may include reinstatement, double back-pay, and compensation for attorneys’ fees and litigation costs.
False Claims Act
The False Claims Act protects employees, contractors, and agents who engage in certain protected activity under the act. Remedies may include reinstatement, double back-pay, and compensation for attorneys’ fees and litigation costs.
A variety of state laws protect whistleblowers and may allow for enhanced remedies, such as punitive damages.