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Whistleblower retaliation: Don’t be afraid to blow the whistle

Many employers get away with wrongdoing because employees are afraid of retaliation.  Although it’s illegal to do so, employers retaliate by taking action against an employee blowing the whistle.  Because of this we have laws that protect whistleblowers from retaliation in place.

What laws prohibit employers from whistleblower retaliation?

There are multiple federal laws that prohibit whistleblower retaliation.  Each law creates its own procedures that employees must follow to make a protected disclosure and to assert their rights.  Also, each law may have a different definition for who a whistleblower is and what counts as retaliation.

Federal Employee & Applicant Protections – The Whistleblower Protection Act (WPA) is an example that applies to federal government employees and applicants who report a federal employer for:

  • a violation of law, rule, or regulation
  • gross mismanagement
  • gross waste of funds
  • abuse of authority
  • substantial and specific danger to public health and safety

The WPA prohibits employers from taking or threatening to take a prohibited personnel practice (e.g., suspension, demotion, non-selection, removal) in retaliation for whistleblowing.

State Whistleblower Protections – Many states have their own whistleblower protection acts that are similar to federal laws.  For instance, the DC Whistleblower Protection Act prohibits retaliation against DC government employees who make protected disclosures or refuse to follow an unlawful instruction.  The Employees of District Contractors and Instrumentality Whistleblower Protection Act provides similar protections to DC contractors and employees of quasi-governmental entities like the Washington Metropolitan Area Transit Authority (WMATA).  Maryland and Virginia have comparable laws.

How do I prove I was retaliated against?

To win your case, you must prove your employer retaliated against you for blowing the whistle.  However, it’s not as easy as it sounds. First, you have to prove you’re a whistleblower. Figure out what law applies to you.  You also need to prove that you followed the right procedure under that law. For instance, if you bring a claim under the WPA, you need to prove you made a protected disclosure to the Office of Special Counsel (OSC).  And you need evidence, such as the complaint you filed. Under the WPA, only certain actions constitute retaliation. In short, you must prove your employer took or threatened to take one of the specific actions listed in the law (promotion, suspension, detail, reinstatement, performance evaluation, decision concerning pay, etc.).

Most importantly, you must prove that your employer took or threatened the action because you blew the whistle.  This is harder than it sounds.  First, you have to establish that the person who took or threatened the action knew that you blew the whistle.  It also helps if you can prove that the action occurred very soon after the person learned about your whistleblower activity.  More than likely, you’ll also need to prove that your employer’s supposed reason for taking or threatening the action is not true.

What should I do next?

Whistleblower cases are complicated.  If possible, try to talk to a whistleblower retaliation attorney as soon as possible, even before you report your employer.  An experienced lawyer can advise you about your rights and what you need to prove your case.

If you complained about your employer’s waste, fraud, or abuse, we can help.  We represent employees in OSC complaints, Independent Right of Action cases with the Merit Systems Protection Board (MSPB), Department of Justice investigations, qui tam actions under the False Claims Act, retaliation claims, arbitration and mediation, and settlement negotiations.  Send us an email or call us at (202) 463-6036 to speak with an experienced employment attorney. Alan Lescht and Associates represents state and local government workers and private sector employees in Washington, DC, Maryland, and northern Virginia, and federal government employees around the world.

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Employee Rights Federal Employees Law Retaliation Whistleblower Retaliation Wrongful Termination

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