People who are fired from their jobs because they asserted their legal rights or complained about illegal behavior may have the legal grounds to file wrongful termination claims based on retaliation or whistleblowing. There are numerous employment laws at both the state and federal levels that prohibit employers from terminating employees on the basis of them filing charges or complaining about discrimination or illegal behavior. Employers also are prohibited from terminating employees who have engaged in whistleblowing, which is when employees report their companies for breaking certain laws or participate in an investigation. The employment law attorneys at Swartz Swidler help people who have been wrongfully terminated with seeking damages to compensate them.
What is retaliation?
When an employer reacts to an employee’s exercising of his or her rights or for reporting illegal behavior with a negative job action, the employer has retaliated against the employee. Retaliation against workers is illegal when it is done because the employees asserted their rights or reported illegal activities such as OSHA violations or wage and hour violations. While government agencies are charged with enforcing the regulations, they do not conduct random audits to search for violations. Instead, the government agencies rely on workers who are willing to come forward and inform the agencies about violations.
Laws protecting workers from workplace retaliation
1. Protection from retaliation for reporting discrimination and harassment
It is illegal for employers to retaliate against employees who complain about discrimination or harassment at work. This includes in-house complaints as well as filing charges with the Equal Employment Opportunity Commission. Retaliation is prohibited even if the original complaint of discrimination or harassment is found to be without a good basis.
2. Protection from retaliation for reporting violations of wage and hour laws
Employees who complain either in-house or to the Department of Labor about violations of wage and hour laws may not be retaliated against. These complaints include failures to pay the minimum wage or overtime, denials of required breaks or keeping portions of tips.
3. Protection from retaliation for taking certain types of leave
Employers may not retaliate against employees for taking approved leave under the Family and Medical Leave Act, workers’ compensation, paid sick leave or time to serve on a jury or to vote.
4. Protection from retaliation for reporting health and safety violations
Workers who report safety violations may not be fired for doing so whether their reports are made to the Occupational Safety and Health Administration or within their companies.
5. Protection from retaliation for filing workers’ compensation claims
Employees who suffer workplace injuries or illnesses may not be penalized for filing workers’ compensation claims.
What is whistleblowing?
Employees who report illegal conduct that was engaged in by their companies and that doesn’t concern workplace rights are called whistleblowers. Examples include reporting tax fraud, shareholder fraud, fraudulent bookkeeping or producing dangerous products.
Employers are prohibited from terminating employees for reporting certain types of illegal activity, and some laws provide explicit protections. One law that does so is the Sarbanes-Oxley Act, which includes provisions to protect employees who report shareholder fraud and other financial regularities by corporations.
In New Jersey, workers are protected against retaliation for whistleblowing by the New Jersey Conscientious Employee Protection Act, which protects both private employees and public workers. Pennsylvania likewise has its own whistleblower law that is located at Pennsylvania Statutes Title 43 Sect. 1421. Both states’ laws provide certain penalties for employers who retaliate against whistleblowing employees.
People who are terminated because they refuse to commit certain illegal acts may also have wrongful termination claims. Examples could include being asked to file a fraudulent tax return or to lie to an investigator. When this occurs, the person may be able to file a wrongful termination claim on the basis of a public policy violation.
What to do
People who were fired for exercising their workers’ rights or reporting illegal activities may have the legal grounds to file wrongful termination lawsuits.
Meeting with an attorney
Because of the complexities involved with whistleblowing and retaliation cases, it may be important for workers to seek help from an experienced employment law attorney at Swartz Swidler. The lawyers may help to determine the type of claim that their clients may have and whether it violates a statute or public policy.
Before people meet with attorneys, they might want to prepare by writing down a timeline of what happened, including what led up to their reports or complaints, when they first complained and what occurred as a result. In order to prevail, people must be able to prove that they were fired because of complaining or making reports. Claims with very short intervals between the complaint or report and the firing are stronger. The person who completed the firing must have known that the worker had engaged in a protected activity.
When people meet with an attorney, he or she may review the facts and then provide an assessment of the potentially available claims and their worth. He or she may then talk about what the best strategic approach might be to reach a successful resolution.
Filing retaliation claims
Some retaliation claims require that people first file complaints with government agencies before they are allowed to file lawsuits in court. Examples include retaliation based on complaints of discrimination. These claims must be filed with the EEOC first. Violations of the Sarbanes-Oxley Act must first be reported to the Occupational Safety and Health Administration.
Other retaliation claims do not have to have an administrative charge filed before seeking legal redress in court. An attorney may help his or her client with determining what needs to be filed first in the client’s case.
Potential damages
The amount of monetary damages that might be available in retaliation and whistleblowing cases will depend on the strength of the claims and what occurred. In most cases involving wrongful termination, employees may seek the following:
- Back pay
- Reinstatement or front pay
- Losses resulting from being fired
- Court costs and attorneys’ fees
Pain and suffering damages may also be available in some cases. If the employer’s conduct was egregious, then punitive damages, which are designed to punish the employer, might also be available. Whistleblowers may be eligible to receive a bounty or fee as provided in some whistleblower laws.
People who believe that they were retaliated against for engaging in protected conduct or for reporting illegal behavior might want to contact Swartz Swidler to schedule consultations.
