It is illegal for an employer to retaliate against whistleblowers or other employees who report various types of illegal activity. An employee who is fired, disciplined, or otherwise treated differently because the employee has complained about illegal activity may have the right to sue the employer under several legal theories:
- Retaliation. Many state and federal laws that give employees certain workplace rights (such as wage and hour laws, workplace safety laws, and laws that prohibit discrimination) also forbid retaliation.
- Whistleblower protections. State and federal laws protect employees who report certain types of illegal employer conduct from mistreatment by their employers.
- Public policy claims. Many states allow employees who are fired for reporting illegal employer conduct to sue for wrongful termination in violation of public policy.
Laws Prohibiting Retaliation
Most laws that provide workers with basic rights also prohibit employers from retaliating against workers who assert those rights by, for example, complaining internally, filing a complaint with an administrative agency, or filing a lawsuit. These laws include:
- Title VII and other laws prohibiting discrimination. Virtually all antidiscrimination laws also prohibit retaliation against employees who file a complaint, whether internally or with a government agency or court. They also protect employees who participate in an investigation of a discrimination or harassment complaint. (For more on these protections, see Retaliation for Reporting Harassment.)
- The Fair Labor Standards Act and state wage and hour laws. Employees who complain about wage and hour violations, such as an employer's failure to pay overtime, pay the minimum wage, or pay employees for work they have done, are also protected from retaliation.
- The Occupational Safety and Health Act (OSHA) and similar state laws. Employees who report workplace hazards are protected from employer retaliation.
- The Family and Medical Leave Act and similar state laws. Employees who request or take FMLA leave or time off under a state leave law may not be retaliated against.
- The National Labor Relations Act. Employees who join or express support for a union, or who otherwise take concerted action to improve their working conditions, are protected from employer retaliation.
Whenever an employee complains, to an employer, outside agency, or court, about a violation of workplace rights, chances are very good that the employee is protected from retaliation.
Employees are also protected from retaliation when they report other types of employer misconduct. There are a number of whistleblower protection laws that prohibit employers from retaliating against employees who report particular kinds of illegal activity. For example, the Sarbanes-Oxley Act protects employees who complain of employer actions that they believe to be shareholder fraud. The Dodd-Frank Act, passed in 2010, provides whistleblower protections for employees who raise concerns about the conduct of financial firms and ratings agencies. Employees who report safety or environmental violations are protected by a number of federal laws. And, employees who report fraud against federal agencies or contracts are protected from retaliation by the False Claims Act.
These are all federal protections; many states have their own whistleblower laws, which protect employees from reporting everything from safety hazards to fraud against consumers.
Wrongful Termination Lawsuits
A number of states allow employees to sue for wrongful termination in violation of public policy if they are fired for reporting illegal activity by their employer (or for refusing to commit illegal actions). In these states, an employee who is fired for reporting criminal conduct or fraud can sue for damages.
Get Legal Help
If you believe you have been retaliated against for asserting your rights or reporting illegal conduct, talk to an employment lawyer right away. The statute of limitations for these types of claims can be very short, particularly for whistleblower claims. And, there are very specific rules about what kind of report you have to make (and to whom) in order to be protected. An employer can quickly assess the facts of your situation and give you some advice about how to proceed.