Whistleblower Laws:
For Employers & Employees
By Michael Yoder, Esq. │ Updated February 23, 2021
What are Whistleblowers Protections and How Does the Process Work?
A whistleblower is someone who discovers illegal activity that is damaging to the federal government or its agencies. Whistleblowers can be, but are not limited to:
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A state or federal government employee (public sector)
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A corporate employee (private sector)
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Anyone who sees or discovers wrongdoing
Whistleblowers can report violations of company policies, violations of local, state, or federal laws or regulations, those who are threats to national security, or those engaged in fraudulent activity or corruption. Many of the most infamous legal cases were initiated by brave individuals willing to speak out against corporate wrongdoing, some of which include:
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Jeffrey Wigand: exposing Big Tobacco
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Mark Felt: exposing the Watergate Scandal
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Coleen Rowley: outlining the FBI's inaction regarding pre-9/11 intel reports
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Frank Serpick: exposing police corruption
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Linda Tripp: exposing the Clinton/Lewinsky affair
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Brad Birkenfeld: exposed multibillion-dollar international tax fraud
Whistleblower Protection Laws
Both, state legislatures and Congress have enacted whistleblower protection laws to protect whistleblowers from retaliation by the companies or agencies involved and to encourage those with knowledge of wrongdoing to come forward. One of the biggest fears with "blowing the whistle" is the backlash often faced by employees when speaking out against their employer, but retaliation comes in many different forms, such as:
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Firing/terminating the whistleblower's employment
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Blacklisting or "blackballing" the whistleblower from his or her industry
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Demoting
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Denying overtime, vacation, promotions, or benefits
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Failing to hire or re-hire the whistleblower
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Intimidating or creating a hostile work environment
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Constructive ousting or "blackballing" the whistleblower from his or her industry
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Reducing pay or work hours
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Threatening the whistleblower to resign or coercing him or her to engage in misconduct
It’s sometimes difficult to separate “normal” employer actions against employees from those actions which are the direct result of retaliation. That’s the reason the whistleblower protection laws have been created; to provide a way to investigate complaints and come to a resolution. These laws look at employer motivation for their actions, and the employer must show that the actions against the employee were part of their normal employment process.
Whistleblower Claims vs. Complaints Against an Employer
Filing a whistleblower complaint is not the same thing as filing a complaint against an employer for violations of the law. Let’s take OSHA for example; the federal agency responsible for overseeing employee safety while on the job. If an employee feels that their company is engaging in unsafe work practices, they can anonymously file a safety and health complaint against OSHA.
Other common employee complaints against employers relate to pay and other workplace violations. These types of complaints should be filed with a state employment agency or the U.S. Department of Labor. If the employee feels they have been retaliated against by the employer for their complaint, that’s when he or she can file a whistleblower protection claim.
Filing a Whistleblower Complaint
If you think you have been wrongfully retaliated against for filing a complaint against your employer, you can file an OSHA whistleblower complaint using the online complaint form, or by phone, fax, or mail. An OSHA violation complaint must include the name of the person making the complaint, and it must be filed within a specific number of days of the event (varying by agency and law).
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The employee engaged in activity protected by the whistleblower protection law(s);
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The employer knew or should have known the employee engaged in such protected activity;
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The employer took an adverse action against the employee; and
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The employee's protected activity caused him or her to face adverse action
How the Process Works
If you think you have been wrongfully retaliated against for filing a complaint against your employer, you can file an OSHA whistleblower complaint using the online complaint form, or by phone, fax, or mail. An OSHA violation complaint must include the name of the person making the complaint, and it must be filed within a specific number of days of the event (varying by agency and law).
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OSHA receives the claim and interviews the Complainant to see which law has been violated and if the claim is clear enough to begin an investigation.
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An investigator is assigned and the Complainant, Respondent, and the appropriate federal agencies are notified.
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The investigator will ask both parties to give each other a copy of everything they submit to OSHA about the complaint.
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OSHA will ask the Respondent to give a written defense (a position statement).
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Both parties should actively participate in the process, responding to the agency's requests and rebutting the opposing party's statements and position.
The parties may agree to settle the dispute using OSHA’s Alternative Dispute Resolution (ADR) program (similar to arbitration and mediation).
If the evidence supports the claim of the employee, OSHA will issue an order requiring the employer to take specific actions to provide relief to the employee—That is, to bring the employee back to his or her position before the retaliation. If the evidence doesn’t support the claim, OSHA will dismiss the claim.
After they receive the OSHA decision, the employer or employee can request a hearing before an administrative law judge of the Department of Labor. There is also an appeal process of the DOL judge’s decision.
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