How to Prove Employer Retaliation Against Whistleblowers
(And Fight Back)

Individuals who report employer violations of laws and regulations can be subject to retaliation.

This whistleblower retaliation can take many forms and can be applied to both current and former employees that blew the whistle on abuse.

Regardless of the whistleblowing case outcomes, employees who relate information that leads to a case are often punished by their employer.

Whistleblowers need to understand what behavior is legally considered employer retaliation and how to prove it.

The whistleblower protection laws shield employees who come forward and report wrongdoing.

This, however, does not prevent employers from taking action in violation of the law.

The first thing to know is that whistleblowing and retaliation claims are two separate things.

Blowing the whistle is a legally protected act and affords the employee protections under federal law.

Any adverse actions taken in retaliation by an employer is treated as a separate violation and potential case.

A better understanding can be found in this example:

An employee reports a False Claims Act violation of Medicare fraud by their employer.

When the Medicare fraud case is filed against the company the anonymous whistleblower’s identity is ultimately revealed.

A couple months later the employer terminates the employee for what they say is downsizing. This is actually retaliation opening the company to further liability. It needs to be proven, but the proximity to the legally protected whistleblowing case provides strong evidence in support.

The individual is free to seek civil redress with a retaliation lawsuit. If action is taken the company now has two cases pending against them. One for violation of the False Claims Act and one for violation of Anti-Retaliation employment laws.

A legally protected activity, under the False Claims Act, is the reporting an employer who commits fraud against the government.

Whether the fraud is proven or not does not matter. If the employee acted in good faith retaliation against them is illegal.

However, the fact that it is illegal does not stop employers, institutions or companies from using punishing tactics and other forms of retaliation.

Employers retaliate because they are scared, ashamed or angry.

That is what whistleblowers need to remember - emotion often overrides better judgement.

They have broken the law and resent those who demonstrated the ability to do the right thing and get rewarded.

Because of this former and current employers often use a number of unscrupulous tactics when retaliating against employees in an attempt to hide their motive.

List of Whistleblower Retaliation Tactics in Workplace:

• Reprimanding or terminating an employee for their actions - The most common form of whistleblower retaliation.
• Lowering employee evaluations that should be higher - You have always performed your job up to and above company standards with good performance reviews. After they discover you reported fraud your evaluations turn negative with unreasonable black marks.
• Transferring an employee to another location or less desirable position: demotion - Employers know you do not like a certain position in the company. They purposely transfer you there to increase the chances you quit
• Verbal or physical abuse - Outright violation. Verbal abuse is more common than physical abuse in the workplace. Supervisors degrade you as a “rat” or say “don’t say anything around them!”
• Threatening an employee - Very common tactic. Employers make it seem like they were unaware of violations and it is your fault; or that you are as culpable as them in the fraud. They threaten that you will go down with them or that they will report you to the authorities.
• Negatively affecting an employee’s family - Canceling a contract with someone who is related to the whistleblower.
• Making work life more difficult - Changing an employee's schedule to purposely create conflicts in their personal life.
• Increased scrutiny of job performance - All of a sudden all your work in being scrutinized for poor performance without proper cause. Employers will say this is the way things have to be now that you reported us.

List of Post-Employment Retaliation Fact Patterns:

• Spreading of false rumors - Backhanded way of pushing employees out. By spreading lies about you other coworkers make your life more difficult. The employer hopes this causes you to quit.
• Blackballing - Similar to spreading false rumors but worse. Former employers tell other companies and similar businesses you can’t be trusted and should not be hired to prevent new employment.

These actions are considered employer retaliation and a violation of the whistleblower protection laws. However, in a retaliation case these claims need to be proven.

How Temporal Proximity works

A period of approximately 30 days is considered very close in most courts. If termination or retaliation tactics are in close enough proximity, it alone is sufficient to prove causation.