Wrongful Termination: Retaliation & Whistleblowing in Pennsylvania

If you were fired for exercising your workplace rights or for reporting illegal activity, you may have a case for wrongful termination.

Did your Pennsylvania employer fire you because you complained about illegal behavior or asserted your legal rights? If so, you may have a wrongful termination claim for retaliation or whistleblowing. Many Pennsylvania and federal employment laws prohibit employers from firing employees for exercising their rights under those laws. Employees may also be protected from getting fired for whistleblowing: reporting that the company has broken laws unrelated to workers’ rights (such as laws regulating consumer protection, product safety, government contracts, or shareholder fraud).

This article explains some of the laws that protect you from retaliation or protect you as a whistleblower, as well as how to make a retaliation or whistleblowing claim.

Retaliation Claims

Retaliation occurs when an employer punishes an employee for exercising a legal right or for complaining about illegal workplace behavior. Many workplace rights laws are enforced by employees who come forward to report a problem, such as harassment, failure to pay overtime, or hazardous working conditions. Although state and federal government agencies are responsible for enforcing these laws, these agencies typically don’t conduct random workplace audits looking for violations. Instead, they rely on employee complaints that an employer has broken the law. Even then, enforcement agencies almost never sue employers directly. The agency might investigate, impose a fine, or even make a finding that an employer has likely violated the law. However, the employee must bring a lawsuit to vindicate his or her rights.

Here are some of the most common laws that protect workers from retaliation:

  • Workplace harassment and discrimination.  You may not be fired for complaining—to your own HR department, the Equal Employment Opportunity Commission, or the Pennsylvania Human Relations Commission—about harassment or discrimination prohibited by federal or state law. You also may not be fired for participating in an investigation of these issues or for exercising your rights under these laws (by, for example, requesting a reasonable accommodation for your disability or your religious practices).
  • Wage and hour laws.  Your employer may not fire you for complaining, whether internally or to the federal or Pennsylvania Department of Labor, that your employer failed to pay the minimum wage, failed to pay overtime, denied legally required breaks, or illegally kept a portion of your tips, for example.
  • Leave laws.  You can’t be fired for exercising your right to take family and medical leave, workers’ compensation leave, time off to vote or serve on a jury, or other legally protected time off work.
  • Health and safety laws.  You may not be fired for reporting, whether within your company or to the Occupational Safety and Health Administration, health and safety violations at your workplace.
  • Worker’s compensation laws.  Pennsylvania courts have found that an employer may not fire an employee for filing a workers’ comp claim for an on-the-job injury.
  • Unemployment insurance laws.  In Pennsylvania, it violates public policy for an employer to fire or refuse to take back an employee who files for unemployment during periods when the employee is not working.

Whistleblowing Claims

Whistleblowing occurs when an employee reports illegal conduct at work that is not directly related to workplace rights. For example, if you report that your company is filing false tax returns or lying to government auditors, you are a whistleblower.

An employer may not fire an employee for blowing the whistle on certain types of illegal activity. Some laws that prohibit certain types of unethical or illegal corporate behavior explicitly protect employee whistleblowers. For example, the federal Sarbanes-Oxley Act, passed in 2002 to protect investors from corporate financial wrongdoing, includes whistleblower protections for employees who report financial irregularities and shareholder fraud.

Pennsylvania law protects whistleblowers who report wrongdoing or waste within their government employers or their private employers that do business with the government (for example, contractors that are paid to provide services or work to a government body). This law was only recently extended to cover government contractors, though. If your employer is a government contractor, you should speak to a lawyer about your potential claim.

If you are fired for refusing to engage in illegal behavior, you may also have a wrongful termination claim. Pennsylvania courts have found that employees who were fired for refusing to engage in illegal price-fixing or to lie to a government investigator could sue for wrongful termination, for example.

What to Do If You Were Fired for Whistleblowing or Retaliation

If your Pennsylvania employer fired you for reporting illegal behavior or exercising your legal rights, you may be able to sue for wrongful termination. Below, we explain how to pursue your claim.

Meet With a Lawyer

Retaliation and whistleblowing claims can be legally complicated. A variety of state and federal statutes prohibit employers from taking action against employees who assert their rights or complain about misconduct. An experienced lawyer can help you determine your specific claims.

You can prepare for your legal consultation by creating a timeline of events: the facts underlying your complaint or your report, when you complained or tried to exercise your rights, and what happened as a result. To prove retaliation or whistleblowing, you must show that you were fired because of your complaint or report. Timing is crucial: The less time between your complaint or attempt to exercise your rights and your employer’s negative action against you, the stronger your claim is. You’ll also have to show that the person who made the decision to fire you knew of your protected activities.

A lawyer will review all of the facts, explain your potential claims, and estimate how much you might be able to collect. A lawyer can also help you decide on the best strategy to vindicate your rights, whether through negotiating with your employer, filing a complaint with a government agency, or going to court.

You may be concerned about how you will pay a lawyer to represent you. Depending on your claims, a lawyer may be willing to take your case on a contingency fee basis. This means the lawyer is paid only if you win, out of the money you are awarded by a court or paid by your employer to settle your case. Also, some retaliation statutes include an attorneys' fees provision, requiring a losing employer to pay the winning employee’s legal fees. You should receive a written explanation of how your lawyer will charge fees at the outset of your working relationship.

Filing a Government Charge

For certain retaliation claims, you may have to file a complaint with a government agency before you go to court. For example, if you were fired for complaining of workplace harassment or discrimination, you must first file a charge of discrimination with the Equal Employment Opportunity Commission or the Pennsylvania Human Relations Commission. If you want to sue for wrongful termination in violation of the Sarbanes-Oxley whistleblower protections, you must first file a complaint with the Occupational Safety and Health Administration.

Not all retaliation claims are subject to this rule, however. And, for some types of retaliation claims, you may—but are not required to—file an administrative charge before going to court. Your lawyer can help you figure out the requirements for your particular claim in your state.

Damages Available for Retaliation and Whistleblowing Claims

How much you might collect if you win a retaliation or whistleblowing case depends on the basis and strength of your claims. For most wrongful termination cases, a winning employee can ask for:

  • back pay: wages and benefits you lost as a result of being wrongfully fired
  • reinstatement or front pay: you can ask the court to give you back your job or, if that’s not feasible, to award you the wages you will lose going forward until you find a new job
  • out-of-pocket losses: any expenses you had to pay as a result of being fired, such as the cost of searching for a new job, and
  • attorneys' fees and court costs.

In some cases, you might also be entitled to emotional distress damages, awarded to compensate you for the pain and suffering caused by your termination. Punitive damages, intended to punish your employer for particularly egregious misconduct, may also be available. And, in some whistleblower cases, you might be eligible for a fee or bounty for protecting the public from wrongdoing. (This might be a set amount per violation, a percentage of the total sanction against the employer, or some other amount determined by the statute or the court.) Your lawyer can explain what types of damages might be available in your case.

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