How whistleblowers are legally protected against retaliation

Whistleblowers perform a valuable public service by exposing fraud, waste, corruption and other wrongdoing that hurts consumers, taxpayers, the general public, corporations, government and nonprofit organizations.

Despite the tremendous benefit they provide society, retaliation against whistleblowers is quite common. Retaliation is any punishment of a whistleblower in the form of intimidation, loss of employment, being demoted or denied overtime pay or a promotion, or a reduction of pay or work hours.

Whistleblower protections are designed to protect the confidentiality of a whistleblower, ensure that any allegations raised are investigated, and shield the whistleblower from retaliation.

Ethic Alliance works to protect whistleblowers and their identity through a combination of the strongest technology and legal protections available, said CEO Scott Williams. “It’s critical that you proactively take steps to protect yourself, your anonymity as well as your legal rights.”

Ethic Alliance advises whistleblowers to never use their corporate email, company-provided computer or phone to communicate about a whistleblowing matter or to file a whistleblower report (devices are often monitored by companies remotely).

The U.S. government has extensive protections for whistleblowers covering employees, contractors, subcontractors and grantees. Many federal agencies have their own whistleblower policies governing businesses and organizations they regulate.

For the Department of Justice, disclosure of alleged wrongdoing is protected against retaliation if it meets two criteria: The disclosure must be based on a reasonable belief that wrongdoing has occurred (what is “wrongdoing” varies slightly depending on the whistleblower’s place of employment); and the disclosure must also be made to a person or entity that is authorized to receive it.

The Occupational Safety and Health Administration’s whistleblower protection program enforces more than 20 statutes protecting employees from retaliation for reporting violations. Areas covered include workplace safety and health; airlines, commercial motor carriers, consumer products, environmental issues, financial reform, food safety, motor vehicle safety, nuclear power, pipelines, railroads, and other areas.

At the Securities and Exchange Commission, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 expanded the protections for whistleblowers and broadened the prohibitions against retaliation. The SEC later implemented rules that let it take legal action against employers who retaliate against whistleblowers by discharging, demoting, suspending, harassing, or in any way discriminating against an employee who has reported conduct the employee reasonably believed violated the federal securities laws.

Dodd-Frank also allows whistleblowers to file retaliation complaints in federal court.  This means whistleblowers who have been retaliated against may be able to sue their employer in federal court and seek double back pay (with interest), reinstatement, reasonable attorneys’ fees, and reimbursement for certain costs in connection with the litigation. 

Most states also have their own whistleblower protections. California’s whistleblower law, for example, says that if an employer retaliates against a whistleblower, the employer may have to reinstate the employee’s job and work benefits, and pay lost wages. The law covers all employees of the state and other municipalities, school districts, community colleges districts, municipal or public corporations, and the University of California.

The state of New York dramatically expanded its whistleblower protections early in 2022. New York’s whistleblower law is considered “particularly expansive.” The amended law addressed “numerous defects” in the state’s previous whistleblower statutes.

“By making the necessary reforms to strengthen the law, this bill will act as a deterrent to employers who might otherwise engage in illegal activity, will protect the public from such wrongdoing, and will ensure that the honest and law-abiding employees who have the courage to reveal illegal activities are protected against retaliation by their employers,” the New York Assembly said.

Corporations often have their own whistleblower policies that outline procedures and protocols and establish how allegations will be investigated and resolved.

It is important for whistleblowers to understand that protections against retaliation will not shield them from liability for any personal wrongdoing they have engaged in.

Contact Ethic Alliance at info@ethicalliance.com

Photo by Michal Matlon on Unsplash