Whistleblower Retaliation: What Legal Protections Exist?

by Rrita Osmani and Alden Hey

Whistleblowers play a critical role in uncovering corporate and government fraud; however, many potential whistleblowers fear retaliation from their current or former employer. This article outlines the legal protections afforded to whistleblowers to prevent retaliation and encourage them to come forward.

What Constitutes Retaliation Under Whistleblower and Employment Law?

Retaliation occurs when an employer fires a whistleblower or takes any adverse action after they report prohibited conduct.

Adverse action includes but is not limited to:

• Firing or laying off
• Demoting
• Denying overtime or promotion
• Disciplining
• Denying benefits
• Failing to hire or rehire
• Intimidation or harassment
• Making threats
• Reassignment to a less desirable position or exclusion from training
• Reducing or changing pay or hours
• Subtle actions such as isolating, mocking, or accusing an employee of poor performance
• Blacklisting
• Constructive discharge
• Reporting or threatening to report an employee to police or immigration authorities

Source: whistleblowers.gov

If any of these actions are taken against an employee following their participation as a whistleblower in an investigation or litigation, the employee may be eligible for recourse under state and federal law.

Which Federal Statutes Protect Whistleblowers from Retaliation?

Federal statutes rely heavily on whistleblowers to report fraud, so protecting them from retaliation is a legislative priority. Key federal laws include the following.

The Whistleblower Protection Act

The Whistleblower Protection Act, as amended by the Whistleblower Protection Enhancement Act of 2012, criminalizes federal officials taking or threatening a personnel action against an employee in retaliation for a protected disclosure.

• Firing or demotion
• Suspension or reassignment
• Negative performance reviews
• Changes in pay or benefits
• Denying training or advancement opportunities

The False Claims Act

The False Claims Act (FCA) provides remedies such as reinstatement, double back pay, interest, compensation for lost benefits, and attorneys’ fees.

The Dodd-Frank Act

The Dodd-Frank Act  offers protections similar to the FCA but applies specifically to whistleblowers in securities and commodities cases.

The Sarbanes-Oxley Act

The Sarbanes-Oxley Act protects whistleblowers reporting fraud against shareholders or other SEC violations and applies exclusively to publicly traded companies.

What Steps Should Employees Take to Document Workplace Retaliation or Report Violations Safely?

Evidence is essential in retaliation cases. Whistleblowers should maintain a detailed log documenting dates, times, locations, individuals involved, and what occurred. Preserving emails, messages, and performance reviews is also important.

How Do State and Federal Whistleblower Laws Differ, and When Does Dual Protection Apply?

Many states, including Pennsylvania, have their own whistleblower protection laws. These laws vary but generally expand protections and may apply simultaneously with federal statutes.

Understanding your state’s specific whistleblower protections may require research or consultation with an attorney.

How Does Miller Shah Assist Clients in Pursuing Retaliation Claims?

Miller Shah represents whistleblowers and protects them from retaliation across a broad spectrum of whistleblower cases, including:

• Banking and mortgage fraud
• Customs and import fraud
• Cybersecurity and data privacy violations
• Defense and government contract fraud
• Education fraud
• Environmental violations
• Financial and securities fraud
• Healthcare fraud
• Pharmaceutical and FDA fraud
• Tax fraud

If you are facing retaliation for blowing the whistle, Miller Shah can pursue remedies such as reinstatement, back pay, and attorney fees. For a free consultation, fill out the form below and an attorney will contact you.